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United States Court of Appeals,Fifth Circuit.

Gaspar ESPARZA–RODRIGUEZ, also known as Juan Munoz Rodriguez, also known as Jose Lopez, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 11–60548.

    Decided: October 18, 2012

Before KING and HIGGINSON, Circuit Judges, and FOOTE1, District Judge.Alfonso Otero (argued), Gonzalez & Otero, L.L.C., San Antonio, TX, for Petitioner. Ann M. Welhaf (argued), Tangerlia Cox, U.S. Dept. of Justice, Office of Immigration Lit., Washington, D.C., for Respondent.

Petitioner Gaspar Esparza–Rodriguez (“Rodriguez”) seeks review of the final order of the Board of Immigration Appeals (“BIA”) finding him ineligible for cancellation of removal under § 240A(b)(9)(C) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b)(1)(C), and deeming him ineligible to be admitted to the United States under § 212(a)(2)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(2)(A)(i)(I), on the basis that the Texas assault statute for which he was convicted qualified as a crime involving moral turpitude (“CIMT”). For the following reasons, we AFFIRM.


Rodriguez is a Mexican citizen who was admitted to the United States as a legal permanent resident on February 15, 1995. On April 18, 2001, he was convicted of two Class A misdemeanors: burglary of a vehicle under Texas Penal Code § 30.04(a) and assault under Texas Penal Code § 22.01. He was sentenced to sixty days in jail for each offense. After serving his sentence, Rodriguez returned to Mexico. On June 23, 2010, Rodriguez applied for entry into the United States as a legal permanent resident. The Department of Homeland Security (“DHS”) initiated removal proceedings against him by filing a Notice to Appear (“NTA”) in immigration court. The NTA charged him under § 212(a)(2)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(2)(A)(i)(I),2 as an alien ineligible for admission into the United States on account of his prior misdemeanor conviction for a CIMT.

On August 13, 2010, Rodriguez appeared before an Immigration Judge (“IJ”), admitted to the seven factual allegations listed in the NTA, and denied the charge against him. Rodriguez later submitted an application for cancellation of removal under § 240A(a) of the INA, 8 U.S.C. § 1229b(a),3 and moved to terminate his removal proceedings, arguing that his assault conviction was not a CIMT and his burglary of a vehicle conviction fell within the petty offense exception under § 212(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1182(a)(2)(A)(ii)(II).4 After a hearing on February 16, 2011, the IJ determined that Rodriguez's assault conviction was for a CIMT, denied his application for cancellation of removal, and ordered him removed from the United States to Mexico. Rodriguez appealed the ruling to the BIA, which denied his request for oral argument and dismissed his appeal. Rodriguez timely appealed the BIA's decision to this court.


Section 212(a)(2)(A)(i) of the INA provides, in pertinent part, that an alien “convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of ․ a crime involving moral turpitude ․ is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Aliens deemed inadmissible under the INA are “ineligible to be admitted to the United States” under § 212(a) of the INA, 8 U.S.C. § 1182(a), and, if already present, are “deportable” under § 237(a)(1)(A) of the INA, 8 U.S.C.A. § 1227(a)(1)(A).5 Because the INA does not define the term “moral turpitude” and legislative history does not clarify which crimes Congress intended to characterize as turpitudinous, we have concluded that “the interpretation of this provision [was left] to the BIA and interpretation of its application to state and federal laws [was left] to the federal courts.” Rodriguez–Castro v. Gonzales, 427 F.3d 316, 320 (5th Cir.2005).

Through its administrative decisions, the BIA has defined “moral turpitude” as encompassing conduct that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” In re Solon, 24 I. & N. Dec. 239, 241–42 (BIA 2007); Garcia–Maldonado v. Gonzales, 491 F.3d 284, 288 (5th Cir.2007). We give Chevron deference to the BIA's interpretation of the term “moral turpitude” and its guidance on the general categories of offenses which constitute CIMTs, but we review de novo the BIA's determination of whether a particular state or federal crime qualifies as a CIMT. See Smalley v. Ashcroft, 354 F.3d 332, 335–36 (5th Cir.2003). “[T]his two-step approach provides both consistency—concerning the meaning of moral turpitude—and a proper regard for the BIA's administrative role—interpretation of federal immigration laws, not state and federal criminal statutes.” Id.

Because the term “assault” captures “a broad spectrum of misconduct, ranging from relatively minor offenses, e.g., simple assault, to serious offenses, e.g., assault with a deadly weapon,” In re Fualaau, 21 I. & N. Dec. 475, 477 (BIA 1996), the BIA has explained that determining whether an assault statute is a CIMT requires “an assessment of both the state of mind and the level of harm required to complete the offense.” In re Solon, 24 I. & N. Dec. at 242. To rise to the level of a CIMT, the BIA has held that an assault statute must have at least two characteristics. First, the scienter element must require specific intent, or, put another way, the actus reus must be accompanied by “the evil intent, depraved or vicious motive, or corrupt mind associated with moral turpitude.” Id. at 241. Second, the assault statute must require “a meaningful level of harm, which must be more than mere offensive touching.” Id. at 241–42. Several courts, but not all, and the BIA, but not always, require also an aggravating element indicative of the inherent vileness of the prohibited conduct.6

Having detailed the characteristics an assault statute must have to be considered a CIMT, we turn to Rodriguez's crime of conviction. Texas Penal Code § 22.01(a) (Assault) states:

A person commits an [assault] offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

“Bodily injury” is defined under Texas law as “physical pain, illness, or any impairment of physical condition.” Tex. Penal Code Ann. § 1.07(a)(8). This “purposefully broad” definition of bodily injury encompasses “even relatively minor physical contacts so long as they constitute more than mere offensive touching.” Morales v. State, 293 S.W.3d 901, 907 (Tex.Crim.App.2009).

We approach whether a particular statute meets the BIA's definition of moral turpitude in two ways. The first approach, known as the categorical approach, assesses whether “the minimum reading of the statute necessarily reaches only offenses involving moral turpitude.” Amouzadeh v. Winfrey, 467 F.3d 451, 454–55 (5th Cir.2006). If so, we end our inquiry there. Id. If, however, the statute has multiple subsections or an element phrased in the disjunctive, such that some violations of the statute would involve moral turpitude and others not, we apply the modified categorical approach, under which we examine the record of conviction7 to determine under which subsection the alien was convicted and which elements formed the basis for the conviction. See Bianco v. Holder, 624 F.3d 265, 268–69 (5th Cir.2010); Amouzadeh, 467 F.3d at 455; see also Calderon–Dominguez v. Mukasey, 261 Fed.Appx. 671, 673 n. 9 (5th Cir.2008) (unpublished). After identifying the elements of the particular crime of conviction, we inquire whether those elements, considered as a whole, constitute a CIMT.8 Id.

The categorical approach, applied to this case, does not resolve the matter because a subsection of the Texas assault statute, § 22.01(a)(3), proscribes physical contact that is merely “offensive or provocative,” conduct that the BIA has held does not qualify as morally turpitudinous. In re Solon, 24 I. & N. Dec. at 241 (explaining that assault statutes which criminalize “offensive or provocative physical contact” are not categorically CIMTs). Because § 22.01 is not categorically a CIMT, we proceed to the modified categorical approach. See Lazaro v. Holder, 390 Fed.Appx. 319, 321 (5th Cir.2010) (unpublished) (applying the modified categorical approach after concluding that § 22.01 is not categorically a CIMT).

Count I of the indictment, to which Rodriguez pleaded guilty, charges him with “intentionally or knowingly caus[ing] bodily injury to [the victim] by striking him on the head with a flower pot ․ [and] kicking him on the side of his body.” That language tracks the statutory elements of § 22.01(a)(1), which proscribes “intentionally, knowingly, or recklessly caus[ing] bodily injury to another, including the person's spouse.” Tex. Penal Code Ann. § 22.01(a)(1). His judgment and sentence reflects that he was convicted of a Class A misdemeanor, further evidence that he pleaded guilty to violating § 22.01(a)(1). See Calderon–Dominguez, 261 Fed.Appx. at 673 (explaining that “only a conviction under § 22.01(a)(1) could give rise to a Class A misdemeanor” because subsections (a)(2) and (3) are Class C misdemeanors unless they involve an elderly or disabled individual or a sports participant). Stated otherwise, Rodriguez's guilty plea to the charged offense of striking someone on the head and kicking him on the side of his body narrows his crime to an intentional or knowing assault, and an assault which, statutorily, did cause bodily injury beyond an offensive touching—indeed, did cause pain, illness or impairment. Having determined that Rodriguez pleaded guilty to subsection (a)(1) of the Texas assault statute, we next review the BIA's conclusion that this subsection is a CIMT.

The BIA concluded, after employing the modified categorical approach, that Rodriguez's record of conviction “shows that his offense was committed with the requisite level of scienter ․ and involved conduct that is ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons and to society in general.’ ” Its decision follows from In re Solon, a case in which the BIA held that a New York statute proscribing “intent to cause physical injury,” defined similarly as “impairment of physical condition or substantial pain,” is a CIMT because it “reflects a level of depravity or immorality appreciably greater than” that involved in simple assault or battery crimes. 24 I. & N. Dec. at 243–45. It is also consistent with this court's two prior unpublished rulings that § 22.01(a)(1) is a CIMT. See Aldape–Garcia v. Holder, 472 Fed.Appx. 304, 305 (5th Cir.2012) (per curiam); Calderon–Dominguez, 261 Fed.Appx. at 673.

Even if we were to question the wisdom of the BIA's considered determination that Rodriguez's conviction under § 22.01(a)(1) is a CIMT, “our inquiry here centers on the reasonableness of the BIA's conception of the term ‘moral turpitude,’ an inquiry that is necessarily and unavoidably constrained by the principles of Chevron deference.” Mustafaj, 369 Fed.Appx. at 169. We therefore join the Second Circuit in concluding, in a nearly identical context, that,

we cannot say that it was unreasonable for the BIA, upon careful consideration, to conclude that an intentional assault that is intended to and does cause more than a de minimis level of physical harm, is “contrary to the accepted rules of morality and the duties owed between persons or to society in general.”



HIGGINSON, Circuit Judge:

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