Hermenegildo Gomez-Perez v. Loretta Lynch
2016 U.S. App. LEXIS 12751
| 5th Cir. | 2016Background
- Petitioner Jose Gomez-Perez, a Guatemalan national who entered the U.S. unlawfully in 1995, lives in Texas with his U.S.-citizen wife and three citizen children.
- In 1999 Gomez was convicted after a bench trial of misdemeanor assault under Tex. Penal Code § 22.01(a)(1) (intentionally, knowingly, or recklessly causing bodily injury).
- In 2011 a traffic stop triggered removal proceedings; Gomez conceded removability and applied for cancellation of removal as a nonpermanent resident under 8 U.S.C. § 1229b(b)(1).
- The immigration judge and the BIA denied cancellation, concluding Gomez’s § 22.01(a)(1) conviction was a "crime involving moral turpitude" and thus disqualifying under § 1229b(b)(1)(C).
- The parties agreed the Texas statute, read broadly, criminalizes reckless conduct and thus is not categorically a crime involving moral turpitude (which requires intentionality), but the IJ and BIA treated the statute as divisible and applied the modified categorical approach.
- The Fifth Circuit applied the Supreme Court’s decision in Mathis, holding Texas’s statute lists alternate means (not alternate elements), so the modified categorical approach cannot be used and the statute is not a categorical match to a turpitudinous crime.
Issues
| Issue | Gomez-Perez's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Tex. Penal Code § 22.01(a)(1) is divisible (allowing the modified categorical approach) | Statute is indivisible; its culpable mental states are means, so categorical approach applies and statute is not a turpitude crime | Statute is divisible; modified categorical approach can identify the violent-intent prong to disqualify Gomez | Court held statute is not divisible under Mathis; cannot use modified categorical approach |
| Whether inconclusive record should be resolved against petitioner (burden to narrow offense) | If statute is indivisible, burden issue is moot; otherwise petitioner should not bear burden to prove non-disqualifying prong | BIA: once statute is divisible, petitioner must show his conviction involved non-disqualifying conduct | Court did not decide the burden question because Mathis resolution made it unnecessary |
| Applicability of Mathis to immigration/categorical analysis | Mathis governs and restricts modified categorical approach to alternative elements only | Government argued prior BIA practice permitted narrowing via record in divisible statutes | Court applied Mathis to hold that only statutory elements (not alternative means) permit use of the modified categorical approach |
| Whether Gomez's conviction is a crime involving moral turpitude | His conviction cannot be classified as such because the statute reaches reckless conduct | Government contended conviction could be narrowed to an intentional or knowing prong and thereby be turpitudinous | Under the categorical approach the statute criminalizes reckless conduct and thus is not a crime involving moral turpitude; case remanded for reconsideration of relief eligibility |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (holds modified categorical approach applies only when statute lists alternative elements, not alternative means)
- Taylor v. United States, 495 U.S. 575 (1990) (established categorical and modified categorical approaches for prior convictions)
- Shepard v. United States, 544 U.S. 13 (2005) (limits documents courts may consult under the modified categorical approach)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (applies categorical methodology consistently in immigration context)
- Esparza-Rodriguez v. Holder, 699 F.3d 821 (5th Cir. 2012) (previously held Texas assault statute not limited to intentional conduct)
- Amouzadeh v. Winfrey, 467 F.3d 451 (5th Cir. 2006) (describes categorical approach for moral turpitude analysis)
- Sauceda v. Lynch, 819 F.3d 526 (1st Cir. 2016) (discusses circuit split on burden when record is inconclusive)