Humberto ONTIVEROS v. UNITED STATES of America
No. [unknown]
United States Court of Appeals, Fifth Circuit
May 17, 2013
518 F. App‘x 326
The attorney appointed to represent Humberto Ontiveros has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Ontiveros has filed a response. The record is insufficiently developed to allow consideration at this time of Ontiveros‘s claims of ineffective assistance of counsel; such a claim generally “cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks and citation omitted). We have reviewed counsel‘s brief and the relevant portions of the record reflected therein, as well as Ontiveros‘s response. We concur with counsel‘s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, the motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Antonio Miguel CHANCOY-TONOC, also known as Anthony Chancoy, Petitioner v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
No. 12-60635
United States Court of Appeals, Fifth Circuit
May 17, 2013
518 F. App‘x 326
Summary Calendar.
Gregory Darrell Mack, Esq., Senior Litigation Counsel, Walter Bocchini, Esq., Trial Attorney, Tangerlia Cox, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Antonio Miguel Chancoy-Tonoc, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (BIA) decision dismissing his appeal of the Immigration Judge‘s (IJ) order that he was removable and denying his request for cancellation of removal. He claims that his prior offense, under Texas
We apply a two-part standard of review to the BIA‘s conclusion that Chancoy-Tonoc committed a crime involving moral turpitude. See Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006). First, we accord substantial deference to the BIA‘s interpretation of the Immigration and Nationality Act and its definition of the phrase “moral turpitude.” Id. Second, we review de novo whether the elements of a state or federal crime fit the BIA‘s definition of a crime involving moral turpitude. Id. The BIA‘s determination of what constitutes moral turpitude must be upheld if it is reasonable. Hamdan v. INS, 98 F.3d 183, 185 (5th Cir. 1996).
Since § 22.01 has multiple subsections and is phrased in the disjunctive, such that some violations of the statute would involve moral turpitude and others not, this court has found that § 22.01 is not categorically a crime involving moral turpitude. Esparza-Rodriguez v. Holder, 699 F.3d 821, 825 (5th Cir. 2012). Using the modified categorical approach, we must review the record of conviction to determine whether Chancoy-Tonoc‘s offense falls into a subsection that is a crime involving moral turpitude. See Amouzadeh, 467 F.3d at 455. Under Texas law, a person commits the offense of assault if he “intentionally, knowingly, or recklessly causes bodily injury to another, including the person‘s spouse.”
PETITION FOR REVIEW DENIED.