Henry Laryea v. Jefferson Sessions, III
2017 U.S. App. LEXIS 17588
| 5th Cir. | 2017Background
- Petitioner Henry K. Laryea, a Ghanaian national admitted on an F-1 visa in 2002, overstayed and in 2011 pleaded guilty to evading arrest under Texas Penal Code § 38.04(a) (Class A misdemeanor) and received 18 days’ jail.
- DHS initiated removal proceedings; Laryea conceded removability and sought cancellation of removal under 8 U.S.C. § 1229b(b)(1).
- The IJ first applied the modified categorical approach and found the offense a crime involving moral turpitude (CIMT); the BIA vacated and remanded for errors including reliance on an improper police report.
- On remand the IJ again concluded § 38.04 was a CIMT (or alternatively that the record showed conviction under the vehicle-fleeing provision) and denied cancellation; the BIA affirmed, holding § 38.04 categorically a CIMT.
- The Fifth Circuit reviews de novo whether a state crime is a CIMT, applies Mathis divisibility principles, and ultimately held § 38.04 divisible and that the Class A misdemeanor in § 38.04(a) (fleeing on foot) is not a CIMT.
Issues
| Issue | Laryea's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether § 38.04 is divisible (triggering the modified categorical approach) | § 38.04 contains alternative elements so it is divisible and the court should examine the record | § 38.04 is categorically a CIMT; divisibility not determinative for relief denial | Court: § 38.04 is divisible because subparts create distinct crimes; apply modified categorical approach |
| Whether the base misdemeanor in § 38.04(a) (fleeing a lawful arrest) is a CIMT | Laryea: fleeing on foot without aggravating factors is not morally turpitudinous | AG: intentional evasion of responsibility is a CIMT (relying on Garcia‑Maldonado) | Court: § 38.04(a) is not a CIMT; mere flight without aggravation does not meet moral turpitude standard |
| Whether the record shows conviction under an aggravated subsection (vehicle use or prior conviction) | Laryea: record shows Class A misdemeanor (no vehicle), so no aggravated element | Government: record could show vehicle-flight CIMT under Pulido‑Alatorre | Court: record reflects a misdemeanor conviction (no vehicle); modified categorical review shows no CIMT for Laryea |
| Whether Garcia‑Maldonado controls (failure to stop and render aid is a CIMT) | Laryea: Garcia‑Maldonado is distinguishable because it involved leaving the scene of a serious accident | Government: Garcia‑Maldonado supports that intentional evasion of responsibility can be a CIMT | Court: Distinguished Garcia‑Maldonado; leaving scene of a serious accident is qualitatively different and more depraved than mere flight |
Key Cases Cited
- Garcia‑Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007) (held failure to stop and render aid after a serious accident is a CIMT)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (divisibility and categorical/modified categorical approach framework)
- Cisneros‑Guerrerro v. Holder, 774 F.3d 1056 (5th Cir. 2014) (definition and consequences of CIMT for cancellation eligibility)
- Pulido‑Alatorre v. Holder, [citation="381 F. App'x 355"] (5th Cir. 2010) (unpublished appellate decision treating vehicle‑flight under § 38.04 as a CIMT)