Hermenegildo Gomez-Perez v. Loretta Lynch

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Hermenegildo GOMEZ-PEREZ, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent.

No. 14-60808

United States Court of Appeals, Fifth Circuit.

Filed July 11, 2016

829 F.3d 323

We therefore reject Puga-Yanez‘s argument that the abhorrent conduct of the defendant in Clemens, with the presence of the child as the object of his gratification, falls outside what we have considered to be the “sexual abuse of a child” under the Guidelines.¹¹ Consequently, Puga-Yanez‘s categorical challenge fails.

Thus, we hold that Clemens does not prohibit conduct that is otherwise permitted under our interpretation of § 2L1.2, nor does it alter our reading of Ga. Code Ann. § 16-6-4(a) or require us to reconsider our holding in Olalde-Hernandez.

IV.

In sum, we find that the district court‘s application of § 2L1.2(b)(1)(A)(ii) does not constitute error. The district court‘s judgment imposing a sentence of 48 months based on § 2L1.2(b)(1)(A)(ii) is

AFFIRMED.

Brian Philip Goldman, Orrick, Herrington & Sutcliffe, L.L.P., San Francisco, CA, Robert Mark Loeb, Orrick, Herrington & Sutcliffe, L.L.P., Washington, DC, Stephen Joseph O‘Connor, Morales & O‘Connor, P.L.L.C., Austin, TX, for Petitioner.

Jesse Matthew Bless, U.S. Department of Justice, Civil Division/OIL, Aaron D. Nelson, Esq., Triаl Attorney, Anthony Cardozo Payne, Assistant Director, Colin James Tucker, Esq., Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Sejal Zota, National Immigration Project of the National Lawyers Guild, Boston, MA, for Amicus Curiae Americаn Immigration Lawyers Association, National Immigration Project of the National Lawyers Guild.

Raed Gonzalez, Esq., Senior Attorney, Sheridan Gary Green, Gonzalez Olivieri, L.L.C., Houston, TX, for Amicus Curiae Gonzalez Olivieri, L.L.C.

Before JOLLY, HAYNES, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge.

Petitioner Gomez-Perez is a Guatemalan citizen, who enterеd the United States illegally in 1995 and has lived here since. He and his wife live together in Texas with their three children, all of whom are U.S. citizens. After law enforcement discovered Gomez‘s lack of lawful status during a traffic stop, he was placed in removal proсeedings. Gomez conceded that he was removable, but sought cancellation as a nonpermanent resident under 8 U.S.C. § 1229b(b)(1). Although his longevity in the United States and family ties meet some of the eligibility requirements for a person to be considered for the discretiоnary act of cancellation of removal, the immigration judge concluded that Gomez did not meet another requirement because of a prior Texas misdemeanor assault conviction. We must decide whether that conviction qualifies as a “crime involving moral ‍​​​‌‌‌‌‌​​‌​​‌‌‌‌​‌​​​‌‌​‌‌​‌​​‌‌‌​​​​​‌‌‌‌​​​​‌‍turpitude” that makes Gomez ineligible for cancellation. The answer to that last question comes from a recent Supreme Court decision clarifying that we only consider the elements that would have to be found by a jury—not mere alternative factual means by which a crime could be committed—in determining whether a prior conviction meets a federal statute‘s classification of prior offenses,

Mathis v. United States, No. 15-6092, — U.S. —, 136 S.Ct. 2243, 2251, 195 L.Ed.2d 604, 2016 WL 3434400, at *6 (U.S. June 23, 2016).

* * *

In 1999, Gomez was charged with misdemeanor assault under seсtion 22.01(a)(1) of the Texas Penal Code, which states that “[a] person commits an offense if the person intentionally, knowingly, or recklessly causes bodily injury to another [person].” TEX. PENAL CODE § 22.01(a)(1). The charging instrument accused Gomez of assaulting his then-roommate, stating that Gomez “did ... intentionally, knowingly, and recklessly cause bodily injury to [the roommate] by hitting [the roommate] on and about the head with the Defendant‘s hand.” Gomez was convicted after a bench trial.

Gomez was placed in removal proceedings several years later after a 2011 traffic stop. The immigration judge rejected Gomez‘s application for cancellation of removal because he found that his conviction under section 22.01(a)(1) constituted a turpitudinous crime. See 8 U.S.C. § 1229b(b)(1)(C) (excluding immigrants with prior conviсtions involving moral turpitude from seeking cancellation of removal from the country). The Board of Immigration Appeals affirmed.

Both sides agree that the Texas assault statute viewed as a whole does not qualify as a crime involving moral turpitude beсause it applies to acts that are not intentional. See

Esparza-Rodriguez v. Holder, 699 F.3d 821, 824-25 (5th Cir. 2012) (citing

In Re Solon, 24 I. & N. Dec. 239, 241-42 (BIA 2007)) (recognizing that the Board requires an intentional act for a conviction to ordinarily qualify as a crime of moral turpitude, and holding that the Texas assault statutе is not so limited).

But both the immigration judge and Board of Immigration Appeals concluded that section 22.01(a)(1) is a “divisible” statute: A divisible statute allows the application of what is known as the “modified categorical approach” to determine if the offеnse involved the intentional conduct that would qualify as a crime of moral turpitude. Under the modified categorical approach, a court may look to certain documents, including the indictment and the judgment, to narrow an offense that otherwise would not be a categorical match with an enumerated offense.

Mathis, 136 S.Ct. at 2248-49, 2253 n. 3, 2016 WL 3434400, at *4, *8 n. 3;

Taylor v. United States, 495 U.S. 575, 598-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); see also

Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (listing approved documents). Although the indictment and judgment in this case do not tell us whether Gomez‘s assault conviction involved intentionаl, knowing, or reckless conduct, the Board concluded that once it is established ‍​​​‌‌‌‌‌​​‌​​‌‌‌‌​‌​​​‌‌​‌‌​‌​​‌‌‌​​​​​‌‌‌‌​​​​‌‍that the offense of a prior conviction is divisible, then the person seeking cancellation has the burden to establish that his offense involved the lesser conduct that would not meet the disqualifying classification. See

Matter of Almanza-Arenas, 24 I. & N. Dec. 771, 776 (BIA 2009) (holding that an inconclusive record was insufficient to carry the immigrant‘s burden of proving the absence of a disqualifying conviction). But see

Sauceda v. Lynch, 819 F.3d 526, 532 & n. 10 (1st Cir. 2016) (collecting cases showing circuit split on this issue and holding that irrespective of any “factual uncertainty” when the “modified categorical approach ... cannot identify the prong of the divisible [] statute under which [the immigrant] was convicted, ... as a matter of law, [the immigrant] [h]as not [been] convicted of a [disqualifying offense]“).¹

Gomez appeals on two grounds. First, he contends that the Texas statute is not divisible. That would mean that the categorical approach applies under which the Texas assault statute would not be disqualifying because it is not limited to intentional conduct. Sеcond, he argues that even if the assault statute is divisible, he does not bear the burden of narrowing his offense. That would mean that inconclusive court records, such as those for his assault conviction, require reverting to the categorical apprоach under which the offense would not qualify.

Under Mathis, Gomez is correct about his first contention, so we need not reach the burden of proof question. Mathis resolved a circuit split about when the modified categorical approach can be applied to try to narrow a statute when a court is considering whether that statute qualifies as a certain type of offense under federal criminal and immigration laws.

136 S.Ct. at 2251, 2016 WL 3434400, at *6. More background about the categorical approach is helpful beforе explaining Mathis.

When a state statute sets out a single or indivisible set of elements to define a single crime,² courts apply the categorical approach.

Id. at 2248, 2016 WL 3434400, at *4. Under this approach, courts line up the elements of the prior offense with the elements of the generic offense described in the federal stаtute to see if they match.

Id. If they do, then the individual is considered to have been convicted of the generic offense, and certain consequences of federal law attach—here, that consequence is ineligibility for cancellation of removal.

Id. But if the elements of the prior offense cover conduct beyond what the generic offense covers, then it is not a qualifying offense.

Id. at 2251, 2016 WL 3434400, at *6. Under this approach, a prior offense qualifies as a crime of moral turpitude if “the minimum reading of thе statute necessarily reaches only offenses involving moral turpitude.”

Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006) (emphasis added). And, as mentioned, the BIA requires intentional conduct for an assault to constitute such a crime.

But when a statute has a divisible structure,³ courts may apply the modified categorical approach that permits courts ‍​​​‌‌‌‌‌​​‌​​‌‌‌‌​‌​​​‌‌​‌‌​‌​​‌‌‌​​​​​‌‌‌‌​​​​‌‍to use formal court documents to narrow the offense of conviction.

Mathis, 136 S.Ct. at 2249, 2016 WL 3434400, at *4. Our sister circuits were divided as to whether the modified categorical approach applies only when a statute sets out alternative elements or also can be used to narrow alternative means a statute sets forth. See

id. at 2249, 2251, 2016 WL 3434400, at *4, *6. The practical difference being that a jury has to agree on one of multiple elements that a statute lists, whereas the jury need not agree on the same alternative means so long аs all jurors conclude that the defendant engaged in one of the possible means of committing a crime.

Mathis held that only the elements matter.

Id. at 2256, 2016 WL 3434400, at *10. So when a statute merely sets out multiple means for committing a crime, some of which match the generic offense and others that do not, the оrdinary categorical approach applies and there is no match to the generic offense.

Id. Mathis restricted the modified categorical approach to an elements-only inquiry for a few reasons. One is that a federal statutе‘s focus on “convictions” indicates a concern with “whether ‘the defendant ha[s] been convicted of crimes falling within certain categories,’ and not about what the defendant ha[s] actually done.”

Id. at 2252, 2016 WL 3434400, at *7 (quoting

Taylor, 495 U.S. at 600); see also 8 U.S.C. § 1229b(b)(1)(C) (requiring that the defendant “has not been convicted of” an offense involving moral turpitude (emphasis added)). Another is the unfairness that would result from using “[s]tatements of ‘non-elemental facts’ against a defendant in a future proceeding when the defendant had no incentive (and sometimes no opportunity) to contest them at the time of conviction.”

Id. at 2253, 2016 WL 3434400, at *8. The “threshold inquiry—elements or means?” thus determines whether the modified categorical approach applies.

Id. at 2256, 2016 WL 3434400, at *10.

Mathis recognized that it will sometimes be difficult to determine whether a state statute sets out alternative means or elements.

Id. at 2256-57, 2016 WL 3434400, at *10-11. That is not the case here. Texas law has definitively answered the “means or elements” question: the three culpable mental states in section 22.01(a)(1) are “conceptually equivalent” means of satisfying the intent element, so jury unanimity as to a particular one is not required.

Landrian v. State, 268 S.W.3d 532, 537 (Tex. Crim. App. 2008). Indeed, Mathis recognized this feature of the Texas assault statute in identifying the Board‘s decision in Gomez‘s case as one that turned on the means versus elements distinction.

Mathis, 136 S.Ct. at 2253 n. 3, 2016 WL 3434400, at *8 n. 3 (discussing this very case and recognizing that simple reckless assault does not qualify as a crime involving moral turpitude).

With Mathis holding that a statute like Texas‘s assault offense that merely offers alternative means of committing an offense does not allow application of the modified categorical approach, wе are back to the general categorical inquiry about which the parties, the immigration judge, and the Board agree. Texas‘s assault statute can be committed by mere reckless conduct and thus does not qualify as a crime involving moral turpitude, which rеquires a more culpable mental state.⁵

* * *

We thus VACATE the judgment of the Board and REMAND for reconsideration of whether Gomez meets the other requirements to be considered for cancellation of removal, and if so, whether he is entitled to that relief аs an exercise of the immigration court‘s discretion.

See case details

Carlos TREVINO, Petitioner-Appellant v. Lorie DAVIS, Director, Texas Department ‍​​​‌‌‌‌‌​​‌​​‌‌‌‌​‌​​​‌‌​‌‌​‌​​‌‌‌​​​​​‌‌‌‌​​​​‌‍of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 15-70019

United States Court of Appeals, Fifth Circuit.

Filed July 11, 2016

Notes

1

Our circuit has not yet decided this issue. But see

Garcia v. Holder, 756 F.3d 839, 847-48 (5th Cir. 2014) (Garza, J., specially concurring) (arguing that the petitioner should bear the burden of proving his crime was not for a qualifying offense).

2

An example is a statute that criminalizes “entering a [premises] ... with the intent to steal.”

Mathis, 136 S.Ct. at 2248, 2016 WL 3434400, at *4.

3

Consider a twist on the previous example: a statute that criminalizes “the lawful entry or the unlawful entry” of a premises with the intent to steal, so as to create two different offenses, one more serious than the other.”

Id.

4

The final justification cited by Mathis—Sixth Amendment “trial by jury” concerns with enhancing a sentence based on facts from a prior conviction that were not required to be proven to a jury—does not apply directly in the immigration context.

Id. at 2252, 2016 WL 3434400, at *7. But Mathis made clear that its clarification of the categorical approach also applies in the immigration context.

Id. at 2253 n. 3, 2016 WL 3434400, at *8 n. 3. As discussed below, it cited the Board‘s decision in this very case.

Id. And the methodology behind the categorical apрroach has never differed depending on whether it was being applied in the criminal or immigration context.

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185-87, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (applying the same methodology interchangeably).

5

Mathis overrules some of our prior cases to the extent they found the Texas assault statute to be divisible and subject to the modified categorical approach. See, e.g.,

Esparza-Rodriguez, 699 F.3d at 825-26;

Chanocua-Tonce v. Holder, 519 Fed.Appx. ‍​​​‌‌‌‌‌​​‌​​‌‌‌‌​‌​​​‌‌​‌‌​‌​​‌‌‌​​​​​‌‌‌‌​​​​‌‍326, 327 (5th Cir. 2013).

11

See, e.g.,

United States v. Balderas-Rubio, 499 F.3d 470, 473 (5th Cir. 2007) (“[T]he phrase ‘sexual abusе of a minor’ is defined broadly to include not only those crimes that involve sexual contact with a minor but also those crimes that involve sexual conduct in the presence of a minor.“); cf.

United States v. Martinez-Vega, 471 F.3d 559, 562 (5th Cir. 2006) (“If gratifying one‘s sexual desires while in the presence of a minor constitutes sexual abuse of a minor, then sexual assault of a child certainly constitutes sexual abuse of a minor.“)

Case Details

Case Name: Hermenegildo Gomez-Perez v. Loretta Lynch

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 11, 2016

Citation: 829 F.3d 323

Docket Number: 14-60808

Court Abbreviation: 5th Cir.