Esparza v. Garland
| Decision Date | 17 January 2022 |
| Docket Number | No. 19-60699,19-60699 |
| Citation | 23 F.4th 563 |
| Parties | Santiago Alejandro DIAZ ESPARZA, Petitioner, v. Merrick GARLAND, U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Raed Gonzalez, Esq., Senior Attorney, Ross Alan Miller, Gonzalez Olivieri, L.L.C., Houston, TX, for Petitioner.
Victor Matthew Lawrence, Esq., Senior Litigation Counsel, U.S. Department of Justice, Office of Immigration Litigation, District Court Section, Washington, DC, for Respondent.
Before Owen, Chief Judge, and Clement and Higginson, Circuit Judges.
Santiago Alejandro Diaz Esparza seeks review of a Board of Immigration Appeals (BIA) decision finding him subject to removal under 8 U.S.C. § 1227(a)(2)(A)(ii), which permits the deportation of aliens who commit two crimes involving moral turpitude (CIMTs) after admission to the United States.1 Diaz Esparza argues that this court should vacate the BIA's decision because res judicata bars the removal proceedings against him, he has not been convicted of two CIMTs, and his convictions did not occur after admission. For the reasons that follow, Diaz Esparza's arguments are unavailing, and we dismiss his petition for review.
Diaz Esparza, a native and citizen of Mexico, entered the United States without inspection in 1999. He adjusted his status to that of a lawful permanent resident in 2005. In 2013, Diaz Esparza was convicted of deadly conduct in violation of Texas Penal Code section 22.05(a). In 2014, Diaz Esparza was convicted of evading arrest with a motor vehicle in violation of Texas Penal Code section 38.04.
The following year, the Department of Homeland Security (DHS) served Diaz Esparza with a notice to appear, charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii). Section 1227(a)(2)(A)(iii) renders "deportable" aliens convicted of aggravated felonies after being admitted to this country.2 Finding that Diaz Esparza's conviction for evading arrest constituted an aggravated felony, the immigration judge (IJ) sustained the charge of removability and ordered Diaz Esparza's removal. The BIA dismissed Diaz Esparza's appeal, and this court denied his petition for review.3 However, the Supreme Court granted certiorari, vacated this court's judgment, and remanded the case back to us for additional consideration in light of Sessions v. Dimaya , which held a portion of the statutory definition of "aggravated felony" unconstitutionally vague.4 We remanded the case to the BIA, and the BIA terminated the removal proceedings because Diaz Esparza was not removable as charged under Dimaya .
In 2019, DHS served Diaz Esparza with a second notice to appear, this time charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii). Section 1227(a)(2)(A)(ii) provides that "[a]ny alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct ... is deportable."5 Diaz Esparza filed a motion to terminate the proceedings. The IJ conducted a hearing, sustained the charge of removability, and denied the motion to terminate. Diaz Esparza appealed, but the BIA affirmed the IJ's decision and dismissed the appeal. Diaz Esparza then filed a timely petition for review with this court.
We first address Diaz Esparza's arguments regarding res judicata. "The doctrine of res judicata applies to administrative adjudications in the immigration context," and "[t]he res judicata effect of a prior judgment is a legal question that we review de novo."6
Diaz Esparza contends that res judicata bars the present removal proceedings. Specifically, he asserts that because his conviction for evading arrest was the basis of a prior proceeding under § 1227(a)(2)(A)(iii), this conviction cannot now support removal under § 1227(a)(2)(A)(ii).
Our precedent forecloses this argument. In Peters v. Ashcroft , we held that res judicata does not bar a subsequent removal proceeding based on a conviction that also supported a prior terminated removal proceeding, so long as the two proceedings occur pursuant to distinct statutory provisions.7 In other words, even when the "second removability charge [is] based on the same underlying ... offense as the first," "so long as the Government relied on a different provision the second time around, res judicata is no bar."8 We have reaffirmed this principle on multiple occasions.9
Accordingly, "the BIA's prior decision" that Diaz Esparza was not removable "has no res judicata effect on the current removal proceeding," which "is based on a wholly separate provision."10 Although both removal proceedings against Diaz Esparza rely on his conviction for evading arrest, the second removability charge is based on § 1227(a)(2)(A)(ii) —requiring conviction of two or more CIMTs—whereas the first removability charge was based on § 1227(a)(2)(A)(iii) —requiring conviction of an aggravated felony.11 Because each proceeding has a distinct statutory basis, res judicata does not bar the present proceeding.12
Diaz Esparza also contends that he does not meet the statutory requirements for deportation because he has not been convicted of two CIMTs after admission to the United States, as required by § 1227(a)(2)(A)(ii).13
First, Diaz Esparza asserts that his conviction for deadly conduct is not a CIMT, so he has not been convicted of two CIMTs.
The Immigration and Nationality Act 14 When determining whether an offense is a CIMT, this court thus affords "Chevron deference to the BIA's interpretation of the term ‘moral turpitude’ and its guidance on the general categories of offenses which constitute CIMTs."15 However, we review de novo whether a particular offense qualifies as a crime of moral turpitude.16
According to the BIA, moral turpitude refers to:
conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se , so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.17
Moreover, the BIA has observed that "moral turpitude is intrinsic to an offense that necessarily involves ‘reprehensible conduct’ committed with some form of ‘scienter,’ such as specific intent, knowledge, willfulness, or recklessness."18
When analyzing whether a given crime satisfies the BIA's definition of a CIMT, this court employs a "categorical approach."19 This analysis "focuses on the inherent nature of the crime, as defined in the statute ... rather than the circumstances surrounding the particular transgression."20 Under the categorical approach, "the statute must be read as the minimum criminal conduct necessary to sustain a conviction."21
Texas law defines deadly conduct as "recklessly engag[ing] in conduct that places another in imminent danger of serious bodily injury."22 An individual acts recklessly when "he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances [surrounding his conduct] exist or the result [of his conduct] will occur."23 " ‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."24
Diaz Esparza argues that deadly conduct cannot be a CIMT because under this court's decision in Gomez-Perez v. Lynch , CIMTs require a mens rea more culpable than recklessness. Gomez-Perez held that misdemeanor assault—a violation of Texas Penal Code section 22.01(a)(1) —was not a CIMT.25 In that case, "[b]oth sides agree[d] that the Texas assault statute viewed as a whole does not qualify as a [CIMT] because it applies to acts that are not intentional."26 Consequently, the central question in Gomez-Perez was whether the assault statute was divisible, such that we could apply the " ‘modified categorical approach’ to determine if the offense involved the intentional conduct that would qualify as a crime of moral turpitude."27 Concluding that the statute was not divisible, we held that "Texas's assault statute can be committed by mere reckless conduct and thus does not qualify as a crime involving moral turpitude, which requires a more culpable mental state."28
Gomez-Perez , however, is distinguishable. That case dealt with misdemeanor assault, which encompasses "relatively minor physical contacts."29 Deadly conduct, however, requires "imminent danger of serious bodily injury,"30 i.e., "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."31 Although both crimes are assaultive offenses,32 deadly conduct entails a much greater degree of potential physical harm than misdemeanor assault.
These varying degrees of harm are integral to our analysis. To define a CIMT, an assault statute must generally contain both (1) a "scienter element ... requir[ing] ... ‘evil intent, depraved or vicious motive, or corrupt mind’ " and (2) a conduct element requiring "a meaningful level of harm, which must be more than mere offensive touching."33 Both elements—"the state of mind and the level of harm"—are critical to the CIMT inquiry "[b]ecause the term ‘assault’ captures ‘a broad spectrum of misconduct, [including]...
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