Rodriguez-Castro v. Gonzales

• Decision Date: 03 October 2005
• Docket Number: No. 04-60003.,04-60003.
• Citation: 427 F.3d 316
• Parties: Seferina RODRIGUEZ-CASTRO, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

427 F.3d 316

Seferina RODRIGUEZ-CASTRO, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.

No. 04-60003.

United States Court of Appeals, Fifth Circuit.

October 3, 2005.

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Barbara Hines (argued), University of Texas School of Law, Austin, TX, for Petitioner.

David V. Bernal, Thomas Ward Hussey, Dir., Suzanne Nicole Nardone (argued), U.S. Dept. of Justice, OIL, Regina Byrd, U.S. Dept. of Justice, Civ. Div., Imm. Lit., Alberto R. Gonzales, U.S. Dept. of Justice, Barry Joseph Pettinato, U.S. Dept. of Homeland Sec., Washington, DC, Kenneth L. Pasquarell, Acting Dist. Dir., U.S. INS, San Antonio, TX, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondents.

Petition for Review of an Order of the Board of Immigration Appeals.

Before DAVIS, STEWART and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

The question presented is whether attempted misdemeanor child abandonment, with intent to return to the child, under section 22.041(b) of the Texas Penal Code is a crime involving moral turpitude (CIMT) under 8 U.S.C. § 1182(a)(2)(A)(i)(I). We conclude that it is not. As interpreted by the Texas courts, that crime is not an "abandonment" in the ordinary sense of the word, but is, in essence, leaving a child under the age of 15 years temporarily without adult supervision under circumstances that a reasonable person would perceive expose the child to an unreasonable risk of harm. Applying the BIA's definition of a CIMT to that category of crime as defined by Texas law, we conclude that the offense does not amount to a CIMT. We therefore grant Ms. Rodriguez-Castro's petition for review, vacate the decision of the BIA, and remand the case to the BIA for further proceedings.

BACKGROUND AND PROCEDURAL HISTORY

Ms. Rodriguez-Castro is a native and citizen of Mexico who entered the United States some time between 1986 and 1990 without inspection or parole. On September 9, 1999, she was indicted in Texas state court for child abandonment with intent to return in violation of Texas Penal Code section 22.041, subsections (b) and (c). She ultimately pleaded guilty to the lesser included charge of attempted misdemeanor child abandonment with intent to return, in violation of Texas Penal Code section 22.041(b). On July 25, 2001, the state court accepted her guilty plea. Ms. Rodriguez-Castro was sentenced to pay a fine and serve 364 days in jail, with imprisonment suspended subject to probation and community service.

On September 24, 1999, the INS charged Ms. Rodriguez-Castro under 8 U.S.C. § 1182(a)(6)(A)(1), i.e., as an inadmissible alien ineligible for admission because she was present in the U.S. "without being properly admitted or paroled" or because she arrived in the United States at "[a] time or place other than as designated by the Attorney General as admissible." Under 8 U.S.C. § 1227(a)(1)(A), such inadmissible aliens are deportable. Ms. Rodriguez-Castro conceded her removability and sought relief by filing an application for cancellation of removal.

Under 8 U.S.C. § 1229b(b)(1), a nonpermanent alien may be granted cancellation by the Attorney General if: 1) she has been present continuously in the U.S. for at least 10 years; 2) she has been "a person of good moral character during [that] period[,]" 8 U.S.C. § 1229b(b)(1)(B); 3) she has not been convicted of certain categories of crimes — including crimes meeting the requirements of 8 U.S.C. § 1227(a)(2), crimes of moral turpitude; and 4) removal "would result in exceptional and extremely unusual hardship to the alien's... child, who is a citizen of the U.S." 8 U.S.C. § 1229b(b)(1)(D).

The immigration judge found Ms. Rodriguez-Castro's conviction for attempted misdemeanor child abandonment qualified as a CIMT. Thus, Ms. Rodriguez-Castro was not eligible for cancellation of removal: "[r]espondant is barred as an alien convicted of an offense under 8 U.S.C. § 1227(a)(2) [CIMTs] and is unable [because of that conviction] to show good moral character." Immigration Judge's Opinion at 6. As a result, a final order was entered, sustaining the charge under 8 U.S.C. § 1182, denying the application for cancellation of removal on the basis of statutory ineligibility, and ordering Ms. Rodriguez-Castro removed from the U.S. Immigration Judge's Opinion at 7. On December 13, 2003 the BIA affirmed the Immigration Judge's decision without opinion. Ms. Rodriguez-Castro timely filed a petition for review of the BIA's decision.

JURISDICTION

On May 11, 2005, the President signed the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, broadening the court's jurisdiction by adding a section to 8 U.S.C. § 1252.¹ The addition reads:

Judicial Review of Certain Legal Claims: Nothing in subparagraph (B) or (C), or in any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section. 8 U.S.C. § 1252(a)(2)(D).

Section 106(b) of the REAL ID Act makes the above section applicable retroactively. Pub.L. No. 109-13, 119 Stat. 231.

The REAL ID Act thus removes jurisdictional bars to direct review of questions of law in final removal, deportation, and exclusion orders. See Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005); accord Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.2005); Gattem v. Gonzales, 412 F.3d 758, 762 (7th Cir.2005); Lopez v. Gonzales, 417 F.3d 934, 936 (8th Cir.2005). In Ms. Rodriguez-Castro's case, the question is entirely a question of law — whether the BIA properly classified the Texas statute as a CIMT. Because a question of law is at issue and because the statute explicitly applies retroactively, we have jurisdiction over Ms. Rodriguez-Castro's case.

STANDARD OF REVIEW

The INA "`does not define the term "moral turpitude" and legislative history does not reveal congressional intent' regarding which crimes are turpitudinous." Smalley v. Ashcroft, 354 F.3d 332, 335 (5th Cir.2003) (quoting Pichardo v. I.N.S., 104 F.3d 756, 759 (5th Cir.1997)). Instead, Congress left the interpretation of this provision to the BIA and interpretation of its application to state and federal laws to the federal courts. Okoro v. I.N.S., 125 F.3d 920, 926 (5th Cir.1997).

The immigration regulations provide that a CIMT is an offense that is both 1) a crime in the jurisdiction of occurrence, and 2) a crime of turpitude per the "moral standards generally prevailing in the United States." 22 C.F.R. § 40.21 (2005). We have concluded that the BIA, through its administrative decisions, has interpreted and defined "crime involving moral turpitude" as follows:

Moral turpitude refers generally 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.

Hamdan v. I.N.S., 98 F.3d 183, 186 (5th Cir.1996)(quoting the BIA's decision in that case) (internal citations omitted); see also Omagah v. Ashcroft, 288 F.3d 254, 259-60 (5th Cir.2002) (quoting Hamdan language with approval). Consequently, we give Chevron deference to the BIA's interpretation of the INA when appropriate, but we review de novo the BIA's interpretation and evaluation of state law in deciding whether a particular state law is a CIMT. See Omagah, 288 F.3d at 258 (5th Cir.2002); accord, Okoro v. I.N.S., 125 F.3d 920, 926 (5th Cir.1997); Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir.2004) ("in determining what the elements are of a particular criminal statute deemed to implicate moral turpitude, we do not defer to the BIA."); Michel v. I.N.S., 206 F.3d 253, 262 (2d Cir.2000) (stating that when "the BIA is interpreting state or federal criminal laws, we must review its decision de novo") (citing Hamdan, 98 F.3d 183, 185 (5th Cir.1996)).

In our de novo interpretation and evaluation of a state law, we look to the statutory crime definition as interpreted by the state's courts, without regard to the particular circumstances surrounding the specific offender's violation. Okabe v. I.N.S., 671 F.2d 863, 865 (5th Cir.1982)("Whether a crime involves moral turpitude depends upon the inherent nature of the crime, as defined in the statute concerned, rather than the circumstances surrounding the particular transgression."); accord, Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir.2005); DeLeon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir.2002); Nguyen v. Reno, 211 F.3d 692, 695 (1st Cir.2000). When applying the categorical approach, "the statute must be read at the minimum criminal conduct necessary to sustain a conviction under the statute." Hamdan, 98 F.3d at 189 (citing U.S. ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir.1939)); accord, Partyka v. Attorney General of the U.S., 417 F.3d 408, 411-12 (3d Cir.2005); Matter of Marchena, 12 I. & N. Dec. 355, 357 (BIA 1967). Generally, a statute that encompasses both acts that do and do not involve moral turpitude cannot be the basis of removal determination under the categorical approach. Hamdan, 98 F.3d at 187 (citing Matter of Short, 20 I. & N. Dec. 136, 138 (BIA 1989)); accord, Smalley v. Ashcroft, 354 F.3d 332, 336 (5th Cir.2003); Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir.2002); Pichardo v. I.N.S., 104 F.3d 756, n. 6 (5th Cir.1997); Michel v. I.N.S., 206 F.3d 253, 263 (2d Cir.2000); Partyka v. Attorney General of the U.S., 417 F.3d 408, 411-12 (3d Cir.200...