668 F. App'x 843
10th Cir.2016Background
- Petitioner Fernando Garcia, a Mexican national, entered the U.S. without admission and conceded removability.
- Garcia sought discretionary cancellation of removal under 8 U.S.C. § 1229b(b); the IJ denied relief as barred by a prior conviction for a crime involving moral turpitude (CIMT).
- The BIA affirmed, finding Texas Penal Code § 22.01(a)(1) divisible and, via the modified categorical approach, concluding Garcia’s conviction was a CIMT.
- This court previously denied Garcia’s petition for review, but subsequent Supreme Court and circuit authority raised doubt about whether § 22.01(a)(1)’s alternative mental states render the statute divisible.
- The Attorney General moved to vacate and remand the court and BIA decisions for further consideration in light of Mathis and related authority.
- The panel granted the motion, vacated the prior decisions, and remanded to the BIA for reconsideration in light of Mathis, Gomez-Perez, and all applicable law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Texas Penal Code § 22.01(a)(1) is a divisible statute for the modified categorical approach | Garcia: statute may be indivisible because alternate mens rea are interchangeable means, so modified categorical approach should not apply | Government/BIA: statute is divisible; records support identifying a culpable mental state making the offense a CIMT | Court: vacated and remanded for BIA to reconsider in light of Mathis and Gomez-Perez (treated as unresolved by prior rulings) |
| Whether a conviction under § 22.01(a)(1) necessarily constitutes a CIMT | Garcia: if statute allows conviction for mere recklessness, such conviction may not be a CIMT | Government: the particular conviction here supports CIMT finding | Held: BIA’s categorical/modified-categorical conclusion vacated; remand required to reassess whether conviction constitutes a CIMT under controlling law |
| Appropriate remedy given intervening Supreme Court authority (Mathis) | Garcia: prior denial of review should be reopened/reconsidered under Mathis | Government: agreed remedy is vacatur and remand to BIA | Held: court granted government’s unopposed motion to vacate prior decisions and remand to BIA |
| Whether rehearing or amicus filings affect disposition | Garcia/amicus sought rehearing | Government moved to vacate and remand; court found motion unopposed | Held: petition for rehearing and amicus motion denied as moot after vacatur/remand |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (limits use of the modified categorical approach where statutory alternatives are means, not elements)
- Gomez-Perez v. Lynch, 829 F.3d 323 (5th Cir. 2016) (applying Mathis to hold Tex. Penal Code § 22.01(a)(1) indivisible because alternate mens rea are means)
- Garcia v. Lynch, [citation="646 F. App'x 582"] (10th Cir. 2016) (this court’s prior disposition, vacated by the panel)