                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                    F I L E D
                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit                    February 14, 2006

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                               No. 04-60385




                     NOE DE JESUS GONZALEZ-GARCIA,

                                                                  Petitioner


                                    VERSUS


             ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,


                                                                  Respondent



                     Petition for Review of an Order
                   of the Board of Immigration Appeals
                              (A39 295 632)



Before DAVIS, SMITH and DENNIS, Circuit Judges.

W. Eugene Davis, Circuit Judge:*

      Noe   De   Jesus   Gonzalez-Garcia     (“Gonzalez”),   a   native    and

citizen of Mexico, petitions this court to review a final order of

removal issued by the Board of Immigration Appeals (“BIA”).                The

BIA   initially    affirmed   the   immigration    judge’s   (“IJ”)      order

removing Gonzalez based on his 1985 and 1986 convictions and



  *
   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opinion should not be published and is not precedent except under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.
remanded to the IJ to consider his claim for discretionary relief

pursuant to INA § 212(c).        On remand the immigration judge ordered

Gonzalez removed based on a 1998 Texas assault conviction.                The IJ

concluded Gonzalez was not entitled to discretionary relief because

the conviction was a crime of violence (“COV”) that occurred after

the effective dates of IIRIRA and AEDPA.                Because we conclude that

the assault conviction is not a COV, Gonzalez is not removable

pursuant to that offense, and he is entitled to have his claim for

discretionary   relief    considered        by    the    BIA.    Accordingly    we

reinstate the BIA’s original order of removal based on the 1985 and

1986 convictions   and        remand   to   the    BIA    for   consideration   of

Gonzalez’s claim for INA § 212(c) discretionary relief.

                         I.    Facts and Procedure

     Gonzalez is a native and citizen of Mexico.                 He was admitted

to the United States on December 31, 1985 as a lawful permanent

resident.   He was convicted of three crimes after his admission.

In 1986, Gonzalez was convicted of two counts of aiding and

abetting the entry of an illegal alien.             In 1989, he was convicted

in Texas state court of theft of an automobile.                 Finally, on June

12, 1998, Gonzalez was convicted in Texas state court of assault.

     On April 28, 1998, the Immigration and Naturalization Service

(INS) issued a Notice to Appear charging Gonzalez as removable

based on the theft conviction, which was identified as a crime of




                                        2
moral turpitude.2    The INS later filed a supplemental Notice to

Appear charging that Gonzalez was removable pursuant to the alien

smuggling convictions.3     During the hearings the IJ asked Gonzalez

if he had been convicted of any other crimes beside those alleged.

Gonzalez admitted that he had been convicted for “push[ing]” his

wife.   After the hearings, the IJ found that the theft conviction

was a crime of moral turpitude, rendering Gonzalez removable

pursuant to 8 U.S.C. § 1227(a)(2)(A)(i).        The IJ also found that

Gonzalez was removable under § 1227 (a)(1)(E)(i) for his alien

smuggling convictions.

      Gonzalez   asserted   that   he   was   eligible   for   waiver   of

deportation pursuant to Immigration and Nationality Act (INA) §

212(c) or for cancellation of removal under 8 U.S.C. § 1229b(a)(2).

The IJ denied relief, concluding that the car theft conviction

interrupted the seven years of continuous presence needed for

cancellation of removal.4


  2
     An alien is removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)
if he or she is convicted of a crime of moral turpitude.
  3
     An alien is removable pursuant to 8 U.S.C. § 1227 (a)(1)(E)(i)
if he knowingly has encouraged, induced, assisted, abetted, or
aided any other alien to enter or to try to enter the United States
in violation of law.


  4
     Section 1229b(d)(1) states:     “[A]ny period of continuous
residence or continuous physical presence in the United States
shall be deemed to end (A) ...when the alien is served a notice to
appear under section 1229(a) of this title, or (B) when the alien
has committed an offense referred to in section 1182(a)(2) of this
title that renders the alien inadmissible to the United States

                                    3
      The Board of Immigration Appeals remanded the case in light of

INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001), finding that

Gonzalez was entitled to seek waiver under former INA § 212(c) (8

U.S.C. § 1182(c)(1994)).            Upon remand, the INS filed another

supplemental Notice to Appear, alleging that Gonzalez’s assault

conviction   was   a   crime   of    domestic   violence   because   it   was

committed against his wife.5           Gonzalez admitted that he had a

conviction for an assault against a family member and conceded that

he was removable because the offense was a crime of domestic

violence.    The INS noted that if Gonzalez was removable for the

assault offense, then St. Cyr would not apply and Gonzalez would

not be entitled to seek discretionary relief because the conviction

occurred in 1998, after the effective date of the Antiterrorism and

Effective Death Penalty Act (AEDPA).

      The IJ granted a continuance to allow the parties to brief the

issue of Gonzalez’s eligibility for discretionary relief.             After

the continuance, Gonzalez asked to retract his admission that the

offense was a crime of domestic violence, but the IJ stated that

the parties were bound by their pleadings.           Gonzalez argued that

the assault conviction was a Class C misdemeanor that required

proof that he committed the offense intentionally. The IJ rejected


under section 1182(a)(2) of this title or removable from the United
States under section 1227(a)(2) or 1227(a)(4) of this title.” 8
U.S.C. § 1229b(d)(1).
  5
     INA § 237(a)(2)(E)(i) makes any alien deportable for crimes of
domestic violence. 8 U.S.C. § 1227(a)(2)(E)(i).

                                       4
Gonzalez’s assertion that a particular mental state was required to

constitute a crime of violence under federal law.              Gonzalez also

asserted that the IJ could not go beyond the charging instrument to

determine that Gonzalez’s wife was the victim of the assault.             The

IJ also rejected that argument.        The IJ found that Gonzalez was not

eligible for discretionary relief because of the 1998 assault

conviction.   Because the IJ found Gonzalez removable for the Texas

assault conviction (a post-IIRIRA offense), the judge did not reach

the issue of whether Gonzalez was entitled to cancellation of

removal or § 212(c) relief for the theft and smuggling convictions.

     On review to the BIA, Gonzalez argued that the IJ erred by not

allowing him to amend his pleadings in light of a new decision by

a different IJ that a Texas assault conviction did not constitute

a COV or a crime of domestic violence.           He also argued that he was

eligible for cancellation of removal under INA § 240A(a) and that

the IJ abused his discretion by denying Gonzalez’s request for

voluntary departure.      The BIA affirmed the IJ’s decision without

opinion.    In this appeal, Gonzalez contends the BIA erred in four

respects:   (1)   in   denying   his   request    to   amend   his   pleadings

regarding the domestic violence charge; (2) in concluding that the

Texas assault conviction constitutes a COV under 18 U.S.C. § 16;

(3) in concluding that the assault conviction constitutes a crime

of domestic violence; and (4) in concluding that he is ineligible

to apply for Cancellation of Removal under INA § 240(A)(a), 8


                                       5
U.S.C. 1229b(a) or § 212(c).   We address Gonzalez’s claims below,

however because we agree with Petitioner that the Texas assault

conviction is not a COV, we do not reach his first and third

issues.

                     II.    Standard of Review

     This court generally only reviews decisions of the BIA, except

it may review an IJ’s decision when the BIA affirms the IJ’s

decision without opinion or additional explanation.     See Moin v.

Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003).        This court must

affirm the decision if there is no error of law and if reasonable,

substantial, and probative evidence on record, considered as a

whole, supports the Board’s factual findings. Id.

                     III.    Crime of Violence

     Gonzalez contends that his Texas assault conviction does not

constitute a crime of violence as defined by 18 U.S.C. § 16.     He

maintains that the assault offense for which he was convicted did

not have as an element the intentional use of physical force.

Because the offense could be committed without the use of physical

force, we agree that this offense does not qualify as a COV.

     Section 1227 (a)(2)(E)(i) of Title 8 provides that “[a]ny

alien who at any time after admission is convicted of a crime of

domestic violence . . . is deportable.”      For purposes of that

section, “the term ‘crime of domestic violence’ means any crime of

violence (as defined in section 16 of Title 18) against a person


                                  6
committed by a current or former spouse of the person....”               8

U.S.C.    §   1227(a)(2)(E)(i).    Thus,    whether   Gonzalez’s   assault

conviction was a “crime of domestic violence” depends on (1)

whether his assault conviction is a “crime of violence as defined

by 18 U.S.C. § 16, and (2) whether his victim was within the class

of persons set forth in § 1227(a)(2)(E)(i).6

      Section 16 defines crime of violence as “an offense that has

as an element the use, attempted use, or threatened use of physical

force against the person or property of another,” or a felony

offense that involves a substantial risk that physical force will

be used against the person or property of another. 8 U.S.C. § 16(a)

& (b).7       This court uses a categorical approach to determine

whether an offense is a COV.      United States v. Charles, 301 F.3d

309, 313-14 (5th Cir. 2002).      In other words, it reviews whether a

defined offense is, in the abstract, a COV without looking to the

underlying facts of the conviction.        United States v. Chapa-Garza,

243 F.3d 921, 924 (5th Cir. 2001).

      Under Texas law, a person commits assault if the person:

      (1) intentionally, knowingly, or recklessly causes bodily

      injury to another, including the person’s spouse;


  6
     Because we find that the Texas assault conviction is not a COV
as defined by 18 U.S.C. § 16, we need not address whether the
victim was in the class of persons set forth in § 1227(a)(2)(E)(i).
  7
     The Texas assault offense which Gonzalez was charged is a
misdemeanor offense. Thus, it clearly does not fall under 8 U.S.C.
16(b) which requires a felony conviction.

                                    7
      (2) intentionally or knowingly threatens another with

      imminent bodily injury, including the person’s spouse; or

      (3) intentionally or knowingly causes physical contact

      with another when the person knows or should reasonably

      believe   that   the    other    will       regard   the   contact     as

      offensive or provocative.

TEX. PENAL CODE ANN. 22.01(a).8

      The charging instrument alleged that Gonzalez “did then and

there intentionally and knowingly cause bodily injury to CLAUDIA

GONZALEZ, hereinafter called the Complainant, by STRIKING THE

COMPLAINANT     WITH   HIS    HAND.”        The    language      of   the   charging

instrument tracks § 22.01(a)(1), but the judgement of conviction

indicates that the charge was “[r]educed to a Class C assault.”

Therefore, Gonzalez pleaded guilty to either subsection (2) or (3)

of § 22.01(a).

      If a statute provides alternative means of committing an

offense, this court may look to the charging papers to determine

which alternative applies to a particular case.                  See United States

v. Calderon-Pena, 383 F.3d 254, 258 (5th Cir. 2004), cert. denied,

125 S.Ct. 932 (2005).        Because Gonzalez pleaded guilty to a lesser

offense than the one charged, the charging instrument is of little

assistance.     However, because the bill of information alleged that


  8
     An offense under § 22.01(a)(1) is a Class A misdemeanor, while
offenses under § 22.01(a)(2) and § 22.01(a)(3) are Class C
misdemeanors.

                                        8
Gonzalez actually caused bodily injury to the victim, rather than

threatening her, we must consider that Gonzalez was convicted of

violating § 22.01(a)(3). To convict under § 22.01(a)(3), the state

need only prove that the perpetrator intentionally or knowingly

caused “offensive or provocative” physical contact with another.

      This court has found that “force,” as used in the statutory

definition of a COV is “synonymous with destructive or violent

force.”     United States v. Rodriguez-Gunzman, 56 F.3d 18, 20 n. 8

(5th Cir. 1995).    Recently we have stated that “while a ‘harmful’

touching likely involves as an element the use, attempted use, or

threatened use of destructive or violent force against the person

of another necessary to quality for a crime of violence sentence

enhancement...an    offensive     touching     may     not   involve    such   an

element.”    United States v. Sanchez-Torres, 136 Fed.Appx. 644 (5th

Cir. 2005)(emphasis added).       We find this reasoning persuasive and

conclude    that   “offensive     or    provocative      contact”      does    not

necessarily    involve   the    use    of   physical    force.9     Therefore,

subsection (a)(3) of the Texas assault statute does not constitute

a COV and Gonzalez is not removable for that offense.


  9
     Three other Circuits have followed similar reasoning and have
reached the conclusion that offensive contact does not involve “use
of force.” See United States v. Arnold, 58 F.3d 1117, 1122 n. 4
(6th Cir. 1995); Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir.
2003); Singh v. Ashcroft, 386 F.3d 1228, 1234 (9th Cir. 2004). Two
Circuits, on the other hand, have found that offensive physical
contact does involve the “use of force.”     See United States v.
Nason, 269 F.3d. 10, 20 (1st Cir. 2001); United States v. Smith,
171 F.3d 617, 621 n.2 (8th Cir. 1999).

                                       9
                          IV. Relief from Removal

     In its motion to amend or modify the opinion, the government

concedes that Gonzalez is entitled to discretionary waiver of his

theft   and   smuggling      convictions   under    §   212(c).    Under      these

circumstances,     it   is   unnecessary   to     consider    cancellation       of

removal.      We   therefore      remand   this     case     to   the   BIA     for

consideration of his entitlement to discretionary relief under §

212(c).

                                V. Conclusion

     Because we find that the petitioner’s Texas assault conviction

is not a crime of violence, he is not removable pursuant to INA §

237(a)(2)(E)(i), and he is entitled to apply for discretionary

waiver pursuant to INA § 212(c), 8 U.S.C. 1182(c).                 Gonzalez is

removable based on the 1985 and 1986 convictions and we reinstate

the BIA’s original order of removal and remand this case to the BIA

for consideration of Gonzalez’s claim for § 212(c) discretionary

relief and further proceedings consistent with this opinion.




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