In Cisneros-Guerrerro v. Holder, the Court of Appeals for the Fifth Circuit curtailed the Board of Immigration Appeals’ (BIA) expansion of what crimes involve moral turpitude. The Court of Appeals for the Fifth Circuit vacated the BIA’s decision that all criminal conduct proscribed by Texas Penal Code §21.07 were categorically crimes involving moral turpitude (CIMTs). The alien had pled nolo contendere to a class A misdemeanor for public lewdness in violation of Texas Penal Code §21.07. He was sentenced to ten days in jail. The alien was subsequently placed in removal proceedings in 2010, because he had entered the United States without inspection. He sought cancellation of removal pursuant to Immigration and Nationality Act (INA) §240A(b)(1). To be eligible for cancellation of removal as a non-lawful permanent resident (LPR) under INA §240A(b)(1), the alien must establish (1) have maintained continuous physical presence in the United States for a period of ten years or more prior to service of a Notice to Appear (NTA) during; (2) have been a person of good moral character; (3) have not been convicted of certain criminal offenses covered under sections 212(a), 237(a)(2) or 237(a)(3) such as CIMTs, multiple criminal convictions, controlled substance related offenses, aggravated felonies, and high speed flight; and (4) his/her removal would result in exceptional and extremely unusual hardship to a United States citizen or LPR spouse, parent, or child, and he/she merits a favorable exercise of discretion. See INA §240A(b)(1).

The Immigration Judge (IJ), without reviewing the record of conviction, pretermitted the alien’s application for cancellation of removal concluding “an offense under Texas Penal Code § 21.07 was categorically a CIMT.” Cisneros-Guerrerro v. Holder, f.3d (5th Cir. 2014). The alien relying on the Attorney General’s decision in the Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008) argued under Texas Penal Code §21.07 that “’public lewdness involves a wide range of behaviors’, including both turpitudinous and non-turpitudinous conduct.” Id. Despite the alien’s arguments, “[t]he BIA affirmed the IJ’s decision in a brief, unpublished decision, concluding that the offense of public lewdness ‘constitutes a categorical crime involving moral turpitude.’” Cisneros-Guerrerro, supra. In reaching this expansive decision that a conviction for any criminal conduct proscribed by Texas Penal Code §21.07 constituted a conviction for CIMT, the BIA relied upon its decision in the Matter of Medina, 26 I. & N. Dec. 79 (BIA 2013). In the Matter of Medina, the BIA concluded the California statute prohibiting indecent exposure banned conduct that involved moral turpitude, because all criminal conduct proscribed by the statute conformed to the commonly accepted definition of moral turpitude. See Matter of Medina, supra.

The Court of Appeals for the Fifth Circuit acknowledged the BIA was entitled to Chevron deference as to its “interpretation of the term ‘moral turpitude’ and its guidance on the general categories of offenses which constitute CIMTs[.]” Cisneros-Guerrerro, supra. Nonetheless, the Court of Appeals for the Fifth Circuit “review[s] de novo the BIA’s determination whether a particular state or federal crime qualifies as a CIMT.” Id. In Cisneros-Guerrerro, the Court of Appeals for the Fifth Circuit performed a two-step analysis to determine whether the alien’s conviction under Texas Penal Code §21.07 was for a crime involving moral turpitude. Id. The Court of Appeals for the Fifth Circuit first applied the categorical approach to determine “whether ‘the minimum reading of the statute necessarily reaches only offenses involving moral turpitude.’” Esparza-Rodriguez v. Holder, 699 F.3d 821, 825 (5th Cir. 2012) citing Amouzadeh v. Winfrey, 467 F.3d 451, 454-455 (5th Cir. 2006). Under the categorical approach, the elements of the offense as defined by statute and case law, and not the actual conduct, is reviewed to assess whether a criminal conviction carries immigration consequences as a CIMT. If all criminal conduct proscribed by the statute involves moral turpitude, the adjudicator’s inquiry ends as the conviction is deemed to be a CIMT. Cisneros-Guerrerro, supra. However, if the criminal statute “has multiple subsections or an element phrased in the disjunctive, such that some violations of the statute would involve moral turpitude and others not, we apply the modified categorical approach[.]” Esparza-Rodriguez v. Holder, supra. Under the modified categorical approach, the adjudicator may consider certain documents from the record of conviction to ascertain whether the alien was convicted of a part of the criminal statute that involves a CIMT. Cisneros-Guerrerro, supra. See also Esparza-Rodriguez, supra.; and Amouzadeh, supra.

Section §21.07 of the Texas Penal Code provides:

[a] person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his:

1. act of sexual intercourse;
2. act of deviate sexual intercourse;
3. act of sexual contact; or
4. act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl.

Tex. Penal Code Ann. §21.07(a). The Court of Appeals for the Fifth Circuit concluded Texas Penal Code §21.07 was a divisible statute as “at least one subsection [ ] proscribe[d] turpitudinous conduct and at least one subsection [ ] proscribe[d] non-turpitudinous conduct.” Cisneros-Guerrerro, supra. According to the Court of Appeals for the Fifth Circuit, this “statute coupled with caselaw, proscribes inoffensive and ubiquitous conduct: the consensual touching of another person’s breast, even if clothed, in public, ‘with the intent to arouse or gratify the sexual desire of any person.’” Id. citing Tex. Penal Code Ann. §21.01(2) and Tex. Penal Code Ann. §21.07(a)(3). The Court of Appeals for the Fifth Circuit held a conviction for sexual conduct did not constitute a CIMT as “[s]uch de minimis touching, even in public, [ ] does not ‘shock[ ], the public conscience as being inherently base, vile, or depraved.’” Id. citing Garcia-Maldonado v. Gonzales, 491 F.3d 284, 288 (5th Cir. 2007). In reaching this conclusion, the Court of Appeals for the Fifth Circuit further relied upon the Attorney General’s view that “the intent to arouse or gratify sexual desire does not alone make conduct turpitudinous.” Id. See also Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008). The mere distinction between the Texas indecency statute at issue in the Matter of Silva-Trevino, supra. and Texas Penal Code §21.07(a)(3) requiring the conduct occur in public or with recklessness as to whether another person is present was insufficient to convert de minimis touching into a CIMT. Id. As such, the Court of Appeals for the Fifth Circuit concluded both the IJ and BIA erred in failing to consider the alien’s record of conviction under the modified categorical approach.