Jesus Mercado v. Loretta Lynch
2016 U.S. App. LEXIS 8197
| 5th Cir. | 2016Background
- Petitioner Jesus Cardoso Mercado, a Mexican national and lawful permanent resident, pleaded nolo contendere to Texas indecent exposure (Tex. Penal Code § 21.08) in 2007 and to making terroristic threats (Tex. Penal Code § 22.07) in 2010.
- DHS charged Mercado with removability under 8 U.S.C. § 1227(a)(2)(A) for committing two crimes involving moral turpitude (CIMTs); one charge was later withdrawn.
- An Immigration Judge denied cancellation of removal and ordered deportation; the BIA affirmed, finding both Texas convictions were CIMTs.
- The BIA applied the "realistic probability" test (from Duenas‑Alvarez/related precedent) to determine whether the state statutes could be applied to non‑CIMT conduct.
- The Fifth Circuit panel declined to adopt the realistic probability test for CIMTs because Fifth Circuit precedent requires applying the "minimum reading" approach; the panel reversed and remanded for the BIA to analyze Mercado’s convictions under the minimum‑reading standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mercado’s Texas convictions are CIMTs | Mercado argued the BIA misapplied law and that convictions must be evaluated under the Fifth Circuit’s minimum‑reading approach | Government argued BIA’s realistic‑probability approach should apply (aligning with other circuits and BIA decisions) | Court held BIA used wrong standard; required application of the minimum‑reading approach and remanded |
| Whether the Fifth Circuit should adopt the realistic‑probability test for CIMTs | Implicitly opposed — maintain binding circuit precedent | Urged adoption of realistic‑probability based on Supreme Court decisions (e.g., Moncrieffe) | Court declined to adopt realistic‑probability here, citing rule of orderliness and no unequivocal intervening Supreme Court change |
Key Cases Cited
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (articulates the "realistic probability" test for comparing state statutes to generic federal offenses)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (interpreting aggravated‑felony analysis and discussing state‑statute conduct vs. generic offense definitions)
- Amouzadeh v. Winfrey, 467 F.3d 451 (5th Cir. 2006) (endorses the "minimum reading" approach for CIMTs in this circuit)
- Nino v. Holder, 690 F.3d 691 (5th Cir. 2012) (applies minimum‑reading test to determine CIMT)
- Jacobs v. National Drug Intelligence Ctr., 548 F.3d 375 (5th Cir. 2008) (explains the rule of orderliness that binds panels to prior circuit precedent)