Maria Banda Nino v. Eric Holder, Jr.
2012 U.S. App. LEXIS 16902
| 5th Cir. | 2012Background
- Banda Nino, a Mexican citizen, entered the U.S. in 1999 as a nonimmigrant and remained beyond authorized time.
- In 2007, she was convicted in Texas of unlawful possession of fraudulent identifying information under Tex. Penal Code § 32.51(b).
- DHS charged Banda with removability for unlawful presence; she conceded removability and sought cancellation of removal under 8 U.S.C. § 1229b(b)(1).
- The IJ held the Texas conviction was a crime involving moral turpitude (CIMT), rendering Banda ineligible for cancellation; the BIA dismissed Banda’s appeal, and she petitioned for review.
- The court addresses whether the conviction is a CIMT and whether eligibility for cancellation is affected by timing provisions in § 1227(a)(2) and § 1229b(b)(1)(C).
- The court ultimately concludes the conviction is a CIMT and Banda is ineligible for cancellation, so the petition is denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is § 32.51(b) a CIMT under the categorical/modified approach? | Banda contends the statute does not necessarily reach CIMT in all cases. | BIA/Siler-Trevino framework show CIMT given the statute’s intent to harm or defraud. | Yes; the offense qualifies as a CIMT under either approach. |
| Does the statute’s 'intent to harm or defraud' phrase render the offense CIMT as a matter of minimum reading? | The statute could apply to conduct not involving CIMT, so not categorically CIMT. | Minimum reading reaches only CIMT offenses due to specific intent to harm or defraud. | Yes; minimum reading reaches only CIMT offenses. |
| Is Banda eligible for cancellation of removal given CIMT and timing requirements? | If CIMT and timing do not bar eligibility under § 1229b(b)(1)(C), she could be eligible. | CIMT bars eligibility regardless of timing under § 1229b(b)(1)(C). | Ineligible for cancellation; CIMT bars relief. |
| Does § 1229b(b)(1)(C) unambiguously reference the crime or also the five-year timing? | The phrase should be read to require the crime occurred within five years of admission. | § 1229b(b)(1)(C) unambiguously references § 1227(a)(2) offenses, without requiring timing relative to admission. | Unambiguous; references § 1227(a)(2) offenses without conditioning on timing. |
| Should Silva-Trevino’s framework apply to determine CIMT in this case? | Silva-Trevino’s approach could permit looking beyond the record to ensure proper application. | Court can rely on the categorical/realistic-probability approach without Silva-Trevino’s extra steps. | Court finds CIMT under both approaches; undecided on Silva-Trevino’s place here. |
Key Cases Cited
- Hamdan v. I.N.S., 98 F.3d 183 (5th Cir. 1996) (defines moral turpitude and its basis in conduct.)
- Amouzadeh v. Winfrey, 467 F.3d 451 (5th Cir. 2006) (categorical approach to CIMT analysis.)
- Omagah v. Ashcroft, 288 F.3d 254 (5th Cir. 2002) (example applying CIMT concepts to fraud-related offenses.)
- Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008) (initial guidance on when to look beyond the record in CIMT analysis.)
- Silva-Trevino v. Holder, No. 11-60464 (5th Cir. filed July 12, 2011) (5th Cir. 2011) (note indicating petition for review of Silva-Trevino.)
- Smalley v. Ashcroft, 354 F.3d 332 (5th Cir. 2003) (applies standard for de novo CIMT determination.)
- Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004) (cross-reference interpretation for 'convicted of an offense under'.)