HERNANDEZ v. LYNCH (2016)

United States Court of Appeals,Fifth Circuit.

Omar Alberto HERNANDEZ, Petitioner, v. Loretta LYNCH, U.S. Attorney General, Respondent.

No. 15–60067.

Decided: May 04, 2016

Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges.

Martha Elva Garza, Esq., Garza & Associates, Bellaire, TX, for Petitioner. Stefanie Notarino Hennes, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Petitioner Omar Alberto Hernandez, a citizen of Mexico, was determined ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1)(C) after an immigration judge concluded that his conviction for deadly conduct under Texas Penal Code § 22.05(a) was categorically a crime involving moral turpitude (“CIMT”). Petitioner appealed to the Board of Immigration Appeals (“BIA”), which applied the “realistic probability” approach to hold that deadly conduct was categorically a CIMT and dismissed the appeal.¹ For the reasons explained in Mercado v. Lynch, 14–60539, slip op. at 3–5 (5th Cir. May 4, 2016), we hold that the BIA applied the incorrect standard in analyzing whether Petitioner's conviction constitutes a CIMT. We reverse and remand for the BIA to analyze Petitioner's convictions under the minimum reading approach.

FOOTNOTES

1. Matter of Hernandez, 26 I. & N. Dec. 464 (BIA 2015).

PER CURIAM:

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