     Case: 18-60139      Document: 00515076100         Page: 1    Date Filed: 08/14/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                      No. 18-60139                               FILED
                                                                           August 14, 2019
                                                                            Lyle W. Cayce
AUDREY IVY GRANT,                                                                Clerk

              Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

              Respondent




                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A075 887 004


Before HAYNES, GRAVES, and HO, Circuit Judges.
PER CURIAM:*
       Audrey Ivy Grant, a lawful permanent resident, challenges the Board of
Immigration Appeals’ (“BIA”) decision denying her motion to reopen removal
proceedings. Grant argues that her attorney was ineffective for conceding
before the Immigration Judge (“IJ”) that her prior state conviction was a crime
involving moral turpitude (“CIMT”) under 8 U.S.C. § 1182(a)(2)(A)(i)(I) 1 that


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1Section 1182(a)(2)(A)(i)(I) reads, in relevant part, “any alien convicted of, or who
admits having committed, or who admits committing acts which constitute the essential
     Case: 18-60139       Document: 00515076100          Page: 2     Date Filed: 08/14/2019



                                       No. 18-60139
was not eligible for the CIMT “petty offense” exception. 2 Because Grant was
ineligible for the petty offense exception, Grant fails to show that her counsel
was ineffective or that the BIA abused its discretion in denying her motion.
Accordingly, Grant’s petition for review is DENIED.
                                               I.
       In 2004, Grant pleaded guilty to securing the execution of a document by
deception, in violation of Tex. Penal Code § 32.46(a)(1). 3 In Grant’s case, the
offense was a state jail felony 4 with a maximum penalty of two years’
confinement in a state jail. She was sentenced to, inter alia, three years’
deferred adjudication and placed on community supervision for three years.
       In 2012, upon returning to the United States from a trip to Ghana, Grant
was stopped at the Atlanta airport and charged with inadmissibility for having
been convicted of a CIMT based on her prior Texas conviction.
       During her removal proceedings before an IJ, Grant’s former counsel
conceded that her Texas conviction was a CIMT and that her conviction did not
fall within the petty offense exception. The attorney then filed an application




elements of-- a crime involving moral turpitude (other than a purely political offense) or an
attempt or conspiracy to commit such a crime . . . is inadmissible.”
        2 An alien is eligible for the petty offense exception if:

        the maximum penalty possible for the crime of which the alien was convicted
        (or which the alien admits having committed or of which the acts that the alien
        admits having committed constituted the essential elements) did not exceed
        imprisonment for one year and, if the alien was convicted of such crime, the
        alien was not sentenced to a term of imprisonment in excess of 6 months
        (regardless of the extent to which the sentence was ultimately executed).
Id. at § 1182(a)(2)(A)(ii)(II).
        3 A person violates § 32.46(a)(1) if, “with intent to defraud or harm any person, he, by

deception,” “causes another to sign or execute any document affecting property or service or
the pecuniary interest of any person.”
        4 “[An] individual adjudged guilty of a state jail felony shall be punished by

confinement in a state jail for any term of not more than two years or less than 180 days.”
Tex. Penal Code § 12.35(a).
                                               2
     Case: 18-60139        Document: 00515076100          Page: 3     Date Filed: 08/14/2019



                                        No. 18-60139
on Grant’s behalf for a waiver of inadmissibility. 5                   The IJ denied the
application and ordered Grant’s removal based on the inadmissibility charge
because she had been convicted of a CIMT.
        Grant appealed the IJ’s decision to the BIA. The BIA affirmed the IJ’s
finding of inadmissibility and denial of her inadmissibility waiver. Grant
appealed the BIA’s decision to this court in Case No. 17-60267, and this court
dismissed Grant’s appeal for lack of jurisdiction. See Grant v. Sessions, 713 F.
App’x 417 (5th Cir. 2018). 6
        In 2017, while Grant’s petition in Case No. 17-60267 was pending before
this court, Grant, represented by new counsel, moved to reopen the BIA
proceedings “to revisit the determination of inadmissibility . . . .” In her motion
to reopen, Grant argued that her former counsel had rendered ineffective
assistance by failing to challenge the IJ’s conclusion that she was inadmissible
based on her prior offense because her prior offense fell within the CIMT petty
offense exception. She argued that since she received deferred adjudication,
her “maximum possible penalty” fell within the petty offense exception’s limit.
Therefore, she argued, the offense was a “petty offense,” and she was not
inadmissible or removable as charged.
        The BIA denied Grant’s motion to reopen. The BIA concluded that Grant
failed to establish that her former attorney’s conduct was deficient or that she
was prejudiced by him not raising her petty offense argument. The BIA found
that:
              [a]t the time of [Grant’s] conviction, deferred
              adjudication in Texas was a mechanism within the


        5 Under 8 U.S.C. § 1182(h)(1)(B), the Attorney General has the authority and
discretion to waive an alien’s inadmissibility if the Attorney General believes that the “alien’s
denial of admission would result in extreme hardship to the United States citizen or lawfully
resident spouse, parent, son, or daughter of such alien.”
       6 The arguments previously before the court in Case No. 17-60267 are not relevant for

purposes of this appeal.
                                               3
    Case: 18-60139     Document: 00515076100       Page: 4   Date Filed: 08/14/2019



                                   No. 18-60139
            discretion of the trial judge, who could order a deferral
            of adjudication and “community supervision” as an
            alternative to incarceration in some cases. Texas Code
            of Criminal Procedure § 42.12 (2004); see also Madriz-
            Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. 2004);
            Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017)
            (addressing Texas pretrial intervention agreements).
            However, the use of deferred adjudication was not
            mandatory, and a criminal trial judge retained the
            discretion to impose the maximum sentence
            authorized by law. In this case, the maximum possible
            sentence which [Grant] could have received was two
            years of incarceration. Texas Penal Code § 12.35.
Grant filed a timely petition for review.
                                         II.
      “We review the denial of a motion to reopen under a highly deferential
abuse-of-discretion standard.” Ramos-Portillo v. Barr, 919 F.3d 955, 958 (5th
Cir. 2019) (citation omitted). The BIA’s decision should be upheld unless the
decision is “capricious, irrational, utterly without foundation in the evidence,
based on legally erroneous interpretations of statutes or regulations, or based
on unexplained departures from regulations or established policies.”             Id.
(quoting Penalva v. Sessions, 884 F.3d 521, 523 (5th Cir. 2018)).
      The BIA’s legal conclusions are reviewed de novo “unless a conclusion
embodies the [BIA’s] interpretation of an ambiguous provision of a statute that
it administers; [such] conclusion . . . is entitled to the deference prescribed by
[Chevron].” Id. (quoting Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006)).
“In reviewing the BIA’s legal conclusions, if the text of the statute is clear, ‘that
is the end of the matter; for the court, as well as the [BIA], must give effect to
the unambiguously expressed intent of Congress.’” Id. at 958–59 (quoting
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43
(1984)).



                                         4
    Case: 18-60139    Document: 00515076100     Page: 5   Date Filed: 08/14/2019



                                 No. 18-60139
       “[The] BIA’s factual findings [are reviewed] under the substantial-
evidence standard, which means that we cannot reverse the BIA’s factual
determinations unless the evidence ‘compels a contrary conclusion.’” Nunez v.
Sessions, 882 F.3d 499, 505 (5th Cir. 2018) (quoting Gomez–Palacios v. Holder,
560 F.3d 354, 358 (5th Cir. 2009)).
                                      III.
       Grant argues that she received ineffective assistance of counsel in her
removal proceedings and that the BIA abused its discretion in denying her
motion to reopen based on that ineffective assistance.
       To prevail on a motion to reopen based on an ineffective assistance of
counsel claim, Grant must show: “(1) that [her] counsel was constitutionally
deficient[,] and (2) that [she] is prejudiced thereby, i.e., ‘that there was a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Diaz v. Sessions, 894 F.3d 222,
228 (5th Cir. 2018) (quoting Strickland v. Washington, 466 U.S. 668, 691, 694,
(1984)); see Matter of Lozada, 19 I & N Dec. 637 (BIA 1988).
       Grant argues that her former attorney’s concession that her conviction
was not a petty offense rendered him constitutionally deficient and prejudiced
her case because she was not inadmissible and did not require a waiver of
inadmissibility. Because Grant is ineligible for the petty offense exception,
Grant’s argument fails.
       Under § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8
U.S.C. § 1182(a)(2)(A)(i)(I), an alien convicted of a CIMT is inadmissible.
However, this section does not apply to an alien eligible for the petty offense
exception. An alien is eligible for the exception if she committed only one crime
and:
            the maximum penalty possible for the crime of
            which the alien was convicted (or which the alien

                                       5
    Case: 18-60139     Document: 00515076100       Page: 6     Date Filed: 08/14/2019



                                  No. 18-60139
             admits having committed or of which the acts that the
             alien admits having committed constituted the
             essential elements) did not exceed imprisonment
             for one year and, if the alien was convicted of
             such crime, the alien was not sentenced to a
             term of imprisonment in excess of 6 months
             (regardless of the extent to which the sentence
             was ultimately executed).


Id. at § 1182(a)(2)(A)(ii)(II) (emphasis added).
      Grant pleaded guilty to a state jail felony.           The maximum penalty
possible for that crime was two years, not one. Because “the text of the statute
is clear, that is the end of the matter.”     Ramos-Portillo, 919 F.3d at 958
(quotation omitted).
      Nonetheless, Grant argues that her offense fell within the petty offense
exception because she received deferred adjudication. Grant does not dispute
that a deferred adjudication is a conviction under immigration law. She does
not dispute that she pleaded guilty to a violation of Tex. Penal Code §
32.46(a)(1) where the statutory maximum penalty is two years. She also does
not dispute that the “maximum penalty possible” under the petty offense
exception is the statutory maximum. Instead, Grant argues that her deferred
adjudication is her conviction and deferred adjudication has no statutory
maximum term of imprisonment under Texas Law. Therefore, she contends,
she had no statutory maximum, so she is eligible for the petty offense
exception.   Put another way, Grant argues that she was eligible for the
exception because deferred adjudication has “no sentence.”
      Under federal immigration law, “[any] reference to a term of
imprisonment or a sentence with respect to an offense is deemed to include the
period of incarceration or confinement ordered by a court of law regardless of
any suspension of the imposition or execution of that imprisonment or sentence

                                        6
    Case: 18-60139     Document: 00515076100     Page: 7    Date Filed: 08/14/2019



                                  No. 18-60139
in whole or in part.” 8 U.S.C. § 1101(a)(48)(B). “Under Texas law, a judge may
enter a deferred adjudication [to an offense] ‘after receiving a plea of guilty or
plea of nolo contendere, hearing the evidence, and finding that it substantiates
the defendant’s guilt.’” Moosa v. I.N.S., 171 F.3d 994, 1005 (5th Cir. 1999)
(quoting Tex. Code Crim. P. Art. 42.12 § 5(a)) (emphasis added).
      In Moosa, the alien challenged the BIA’s decision denying his request for
suspension of deportation. He argued that the definition of “conviction” under
immigration law did not apply to his deferred adjudication because there could
be no “sentence” for a deferred adjudication under Texas law. Id. at 1007. We
found that Moosa erred in using Texas law to interpret the meaning of
“sentence” in the federal immigration statute because “[i]n the absence of a
plain indication to the contrary, . . . it is to be assumed when Congress enacts
a statute that it does not intend to make its application dependent on state
law.” Id. at 1008 (quoting NLRB v. Natural Gas Utility Dist., 402 U.S. 600,
603 (1971)). We noted that “[although] not controlling, our court has found
Texas deferred adjudications to be ‘sentences’ under the federal Sentencing
Guidelines.” Id. (citing United States v. Valdez–Valdez, 143 F.3d 196, 201 (5th
Cir. 1998); United States v. Giraldo–Lara, 919 F.2d 19, 22 (5th Cir. 1990)).
      Grant argues that she was eligible for the petty offense exception
because deferred adjudication has “no sentence.” However, Grant errs in using
Texas law to interpret the meaning of “sentence” in the immigration statute.
See Moosa, 171 F.3d at 1007. Based on the plain language of the petty offense
exception, there is no indication that Congress        intended the exception’s
application to be dependent on state law. This court has found that “sentence,”
as defined by immigration law, includes confinement by court order. Calvillo
Garcia v. Sessions, 870 F.3d 341, 344 (5th Cir. 2017). Grant was confined by a
court order when she was sentenced to deferred adjudication as a condition of
community supervision.
                                        7
    Case: 18-60139    Document: 00515076100      Page: 8   Date Filed: 08/14/2019



                                 No. 18-60139
      Of significant note, deferred adjudication was her actual sentence and
was not her maximum sentence possible.          Unlike other provisions of the
Immigration Act that depend on an alien’s actual sentence, the petty offense
exception applies “regardless of the extent to which the sentence was
ultimately executed.” 8 U.S.C. § 1182(a)(2)(A)(ii)(II).
      Grant’s other arguments in support of her position are unpersuasive.
Grant argues that if she had been sentenced under another state criminal
statute, “she probably would not have been placed in removal proceedings at
the Atlanta airport.” However, it is clear that Grant was sentenced under Tex.
Penal Code § 32.46(a)(1), a state jail felony with a maximum possible sentence
of two years.
      Grant then attempts to analogize her offense with offenses under
California’s “wobbler” statutes. In California, the state can treat a conviction
under a wobbler statute as either a felony or as a misdemeanor. See Ceron v.
Holder, 747 F.3d 773, 777 (9th Cir. 2014).        The maximum penalty of a
misdemeanor may differ from the maximum penalty of a felony. However,
those offenses are distinguishable from Grant’s offense because Grant pleaded
guilty to a state jail felony where the statutory maximum was set at two years.
      Grant’s actual sentence was deferred adjudication, but deferred
adjudication was not the maximum penalty possible for the crime. As the BIA
correctly noted, deferred adjudication in Texas is simply an alternative to
sentencing someone to incarceration. Despite receiving deferred adjudication,
Grant’s maximum sentence possible was two years of incarceration. Therefore,
Grant was ineligible for the petty offense exception, and she has failed to
demonstrate that her former counsel rendered ineffective assistance by
conceding that Grant was ineligible for the exception.
                                       IV.
      For the foregoing reasons, Grant’s petition for review is DENIED.
                                       8
