     Case: 15-60722      Document: 00514152397         Page: 1    Date Filed: 09/12/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 15-60722                               FILED
                                                                         September 12, 2017

HENRY KPANI LARYEA,
                                                                            Lyle W. Cayce
                                                                                 Clerk

              Petitioner

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

              Respondent




                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                                 BIA A097 680 721


Before DAVIS, GRAVES, and COSTA, Circuit Judges.
PER CURIAM:*
       Proceeding pro se, Henry Kpani Laryea, a native and citizen of Ghana,
petitions for review of a decision of the Board of Immigration Appeals finding
that his prior conviction of evading arrest under Texas Penal Code § 38.04
(2011) was categorically a crime involving moral turpitude rendering him
ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1). Because we
hold that § 38.04 is not categorically a crime involving moral turpitude, we


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                        No. 15-60722
GRANT Laryea’s petition, VACATE the BIA’s decision, and REMAND for
further proceedings consistent with this opinion.
                                               I.
       Laryea was admitted to the United States in 2002 on an F-1
nonimmigrant student visa. Laryea remained in the United States without
authorization after his visa expired in 2008. In July 2011, Laryea pleaded
guilty to evading arrest, a Class A misdemeanor, in violation of Texas Penal
Code § 38.04 (2011), 1 and was sentenced to 18 days in jail. The Department of
Homeland Security initiated removal proceedings pursuant to 8 U.S.C. §
1227(a)(1)(B) against Laryea for remaining in the United States longer than
his visa authorized. Through counsel, Laryea admitted the factual allegations
in his Notice to Appear and conceded removability, but indicated his intention
to apply for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
       The Immigration Judge (“IJ”) determined that § 38.04 was divisible and
applied the modified categorical approach to determine whether the conduct
underlying Laryea’s conviction was a crime involving moral turpitude
(“CIMT”). The IJ reviewed several state court documents, including a police
report filed after Laryea’s encounter with law enforcement that led to his
indictment. The IJ concluded that Laryea’s conduct, fleeing from peace officers
attempting to lawfully arrest him, was morally turpitudinous and constituted




       1Section 38.04 provides, in relevant part,
      (a) A person commits an offense if he intentionally flees from a person he knows
      is a peace officer attempting lawfully to arrest or detain him.
      (b) An offensive under this section is a Class A misdemeanor, except that the
      offense is:
          (1) a state jail felony if:
               (A) the actor has been previously convicted under this section; or
               (B) the actor uses a vehicle while the actor is in flight and the actor has
               not been previously convicted under this section . . . .
TEX. PENAL CODE § 38.04 (2011).
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                                     No. 15-60722
a CIMT under 8 U.S.C. § 1227(a)(2), which pretermitted his application for
cancellation of removal under 8 U.S.C. § 1229b(b)(1)(c).
      Laryea appealed to the Board of Immigration Appeals (“BIA”). The BIA
vacated the IJ’s decision and remanded the case, holding that the IJ erred in
(1) finding that § 38.04 was divisible without first considering whether all of
the offenses under the statute are categorically a CIMT; and (2) relying on the
police report, a document not part of the record of conviction in this case, to
determine Laryea’s conviction constituted a CIMT.
      On remand, the IJ held that § 38.04 was categorically a CIMT because it
involves conduct that reflects “an intentional attempt to evade responsibility,”
which constitutes a CIMT under our case, Garcia-Maldonado v. Gonzales. 2
While Garcia-Maldonado involved a different crime, the IJ reasoned that
intentionally fleeing from a lawful arrest is, at bottom, an evasion of
responsibility and therefore § 38.04 categorically constitutes a CIMT.
Alternatively, the IJ held that if § 38.04 is not categorically a CIMT, it would
still be one under the modified categorical approach. The IJ pointed to Pulido-
Alatorre v. Holder, where we held that evading arrest with a vehicle under a
prior version of § 38.04 was a CIMT. 3           The IJ looked to the appropriate
documents in Laryea’s record of conviction and concluded that he was
convicted under the portion that criminalizes evading arrest with a vehicle, the
same as in Pulido-Alatorre, and thus was convicted of a CIMT.
      Laryea again appealed the IJ’s decision to the BIA. The BIA affirmed
the decision of the IJ, finding that § 38.04 is categorically a CIMT because
“[t]he gravamen of this offense is the intentional and affirmative obstruction
of, or interference with, a police officer’s exercise of the duty to make a lawful


      2  See Garcia-Maldonado v. Gonzales, 491 F.3d 284, 290 (5th Cir. 2007) (holding that
a conviction for failure to stop and render aid following a fatal car accident is a CIMT).
       3 381 F. App’x 355, 358-59 (5th Cir. 2010).

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                                        No. 15-60722
arrest.” Relying on Garcia-Maldonado, the BIA held that this “intentional
evasion of responsibility for criminal acts” constitutes a CIMT. 4 Because the
BIA held that Laryea’s conviction was categorically a CIMT, it failed to reach
his arguments relating to the modified categorical approach.
       Proceeding pro se, Laryea filed a petition for review from this Court.
Laryea’s primary argument on appeal is that § 38.04 is divisible and the BIA
should have applied the modified categorical approach to determine whether
his crime of conviction is a CIMT. 5
                                            II.
       “When considering a petition for review, this court has the authority to
review only the BIA’s decision, not the IJ’s decision, unless the IJ’s decision
has some impact on the BIA’s decision.” 6 “[T]his court may review the IJ’s
findings and conclusions if the BIA adopts them.” 7 Here, the BIA affirmed the
findings and conclusions of the IJ, so we review both decisions.
       If an alien has been convicted of a CIMT, he is “ineligible for cancellation
of removal if, among other things, under the statute of conviction, ‘a sentence


       4 See Garcia-Maldonado, 491 F.3d at 290.
       5 Laryea raises several other issues on appeal including collateral attacks on his
underlying conviction including his plea was unknowing and involuntary, insufficiency of the
evidence, and ineffective assistance of counsel. Laryea cannot collaterally attack his
conviction in a petition for review. See Singh v. Holder, 568 F.3d 525, 528 (5th Cir. 2009).
Laryea raises two other issues for the first time in this appeal, arguing that (1) his conviction
does not render him statutorily ineligible for cancellation of removal because it was not
committed within five years of his admission as required by 8 U.S.C. § 1227(a)(2)(A)(i); and
(2) he is eligible for cancellation of removal because his conviction falls within the petty
offense exception in 8 U.S.C. § 1182(a)(2). Because Laryea raises these issues for the first
time in his petition for review, he has not exhausted his administrative remedies with respect
to these claims and we lack jurisdiction to review them. See Wang v. Ashcroft, 260 F.3d 448,
452-53 (5th Cir. 2001) (“An alien fails to exhaust his administrative remedies with respect to
an issue when the issue is not raised in the first instance before the BIA—either on direct
appeal or in a motion to reopen.”); Townsend v. INS, 799 F.2d 179, 181 (5th Cir. 1986)
(holding that this Court lacks jurisdiction to review unexhausted claims).
       6 Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009) (citing Mikhael v. INS, 115 F.3d

299, 302 (5th Cir. 1997)).
       7 Id. (citing Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002)).

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                                         No. 15-60722
of one year or longer may be imposed.’” 8 The Immigration and Nationality Act
“‘does not define the term moral turpitude,’ and legislative history provides us
with little guidance as to Congress’s intent.” 9 The BIA has determined that
“moral turpitude” includes conduct that is “inherently base, vile, or depraved,
and contrary to the accepted rules of morality and the duties owed between
persons or to society in general.” 10
       “We give Chevron deference to the BIA’s interpretation of the term ‘moral
turpitude’ and its guidance on the general categories of offenses which
constitute CIMTs, but we review de novo the BIA’s determination of whether
a particular state or federal crime qualifies as a CIMT.” 11
       We use the categorical approach to determine whether a prior conviction
is a CIMT by focusing on the elements of the offense rather than the underlying
conduct and asking “if the minimum reading of the statute necessarily reaches
only offenses involving moral turpitude.” 12 If the statute contains alternative
elements where some are qualifying offenses and some are not, we use the
modified categorical approach and consider the record of conviction to
determine whether the alien was convicted under the qualifying portion of the
statute. 13




       8 Cisneros-Guerrerro v. Holder, 774 F.3d 1056, 1058 (5th Cir. 2014) (quoting 8 U.S.C.
§ 1227(a)(2)(A)(i)(I), (II)); see also 8 U.S.C. § 1229b(b)(1)(C) (stating, in part, that an alien is
only eligible for cancellation of removal if he “has not been convicted of an offense under
section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title”).
       9 Id. (quoting Rodriguez-Castro v. Gonzales, 427 F.3d 316, 319-20 (5th Cir. 2005)).
       10 Id. (quoting In re Sejas, 24 I. & N. Dec. 236, 237 (BIA 2007)); see also Garcia-

Maldonado, 491 F.3d at 288 (“Moral turpitude refers generally to conduct that shocks the
public conscience as being inherently base, vile, or depraved, and contrary to the accepted
rules of morality and the duties owed between person or to society in general.”).
       11 Id. (quoting Esparza-Rodriguez v. Holder, 699 F.3d 821, 823-24 (5th Cir. 2012))

(internal quotation marks omitted).
       12 Mathis v. United States, 136 S. Ct. 2243, 2248 (2016); Amouzadeh v. Winfrey, 467

F.3d 451, 455 (5th Cir. 2006).
       13 Mathis, 136 S. Ct. at 2249.

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                                       No. 15-60722
      Laryea argues that his prior conviction, evading arrest or detention
under Texas Penal Code § 38.04 (2011), is a divisible statute and therefore the
modified categorical approach should be used to determine whether his crime
of conviction is a CIMT.
      Laryea was convicted of a Class A misdemeanor under § 38.04. Under
this statute, a person evades arrest “if he intentionally flees from a person he
knows is a peace officer attempting lawfully to arrest or detain him.” 14 Subpart
(b) of this statute classifies the offense as a Class A misdemeanor or as a felony
under (b)(1) if “(A) the actor has been previously convicted under this section;
or (B) the actor uses a vehicle while the actor is in flight and the actor has not
been previously convicted under this section.” 15
      Under Mathis, we must determine whether § 38.04 is divisible, that is,
whether it contains alternative elements where some acts are CIMT and some
acts are not. 16 We hold that § 38.04 is divisible under this standard because
subparts (b)(1)(A) and (B) make it a felony if the fleeing individual has a prior
conviction under § 38.04 or uses a vehicle to flee. 17 The felony acts described
above are “different crime[s]” from the misdemeanor offense described in
subpart (a) which criminalizes “flee[ing] from a person he knows is a peace
officer attempting lawfully to arrest or detain him.” 18 Therefore, we are bound
to apply the modified categorical approach to determine whether Laryea’s
crime of conviction is a CIMT. This conclusion is consistent with our findings
in Pulido-Alatorre v. Holder. 19 In that unpublished opinion, we held that the




      14 TEX. PENAL CODE § 38.04(a) (2011).
      15 Id. § 38.04(b).
      16 See Mathis, 136 S. Ct. at 2249.
      17 TEX. PENAL CODE § 38.04(b)(1)(A), (B) (2011).
      18 Id. § 38.04(a), (b); see Mathis, 136 S. Ct. at 2250.
      19 381 F. App’x 355, 358-59 (5th Cir. 2010).

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                                       No. 15-60722
alien’s conviction under § 38.04 involving flight using a vehicle was a CIMT. 20
Here, examining the record of conviction, Laryea was convicted of a Class A
misdemeanor, which does not involve flight using a vehicle. We hold that
fleeing from a police officer, without more, does not rise to the level of moral
turpitude because it is not “inherently base, vile, or depraved, and contrary to
the accepted rules of morality and the duties owed between persons or to
society in general.” 21 Therefore, we find that the conduct involved in Laryea’s
offense, “intentionally flee[ing] from a person he knows is a peace officer
attempting lawfully to arrest or detain him,” is not a CIMT. 22
       The Attorney General relies on Garcia-Maldonado, a case that involved
a different crime, 23 for the general proposition that intentional evasion of
responsibility for criminal acts is a CIMT.               Because Laryea intentionally
evaded responsibility by fleeing from a lawful arrest, the Attorney General
argues, his conviction under § 38.04 is a CIMT. We disagree. There, we held
that a prior conviction for failing to stop and render aid after an automobile
accident was a CIMT. 24          Garcia-Maldonado was convicted of intentionally


       20 Id. at 359. The crime of conviction in Pulido-Alatorre, was a prior version of § 38.04
that was materially the same as the 2011 version at issue in this case. The only difference is
that the base-level offense was classified as a Class B misdemeanor. There, the court
analyzed the following text and determined that subpart (b)(1)(B) was a CIMT:
       (a) A person commits an offense if he intentionally flees from a person he
           knows is a peace officer attempting to lawfully arrest or detain him.
       (b) An offense under this section is a Class B misdemeanor, except that the
           offense is:
           (1) a state jail felony if
                (A) the actor has been previously convicted under this section; or
                (B) the actor uses a vehicle while the actor is in flight and the actor has
                    not been previously convicted under this section.
TEX. PENAL CODE § 38.04 (2005).
       21 Cisneros-Guerrerro, 774 F.3d at 1058 (quoting In re Sejas, 24 I. & N. Dec. 236, 237

(BIA 2007)).
       22 TEX. PENAL CODE § 38.04(a) (2011).
       23 491 F.3d at 287 (finding that failure to stop and render aid under § 550.021 of the

Texas Transportation Code is a CIMT for immigration purposes).
       24 Id. at 290.

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                                        No. 15-60722
leaving the scene of a serious accident that he knew had occurred. 25 “Once a
driver knows he was involved in an accident, he necessarily knows it is wrong
to leave, or at the very least, to leave without attempting reasonable
assistance.” 26 “[F]ailure to stop and render aid after being involved in an
automobile accident is the type of base behavior that reflects moral
turpitude.” 27 The conduct criminalized under § 38.04(a), even to the extent it
reflects an intentional evasion of responsibility for criminal acts, does not,
without more, rise to this level of moral turpitude. 28 Garcia-Maldonado is
therefore distinguishable.



       25  Id.
       26  Id.
        27 Id.
        28 This conclusion is consistent with state court decisions we have found. Those states

that allow impeachment of witnesses with morally turpitudinous convictions generally find
that resisting, fleeing, or evading arrest is not a CIMT. Finley v. State, 661 So. 2d 762, 765
(Ala. Crim. App. 1995) (concluding that "resisting a police officer" is not a CIMT); Barge v.
State, 568 S.E.2d 841, 845 (Ga. App. 2002) ("The misdemeanors, fleeing an officer and
obstruction of an officer, do not fit within the definition of crimes of moral turpitude."); State
v. Hall, 411 S.E.2d 441, 443 (S.C. App. 1991) (holding that "non-violent resistance, does not
constitute a crime of moral turpitude"); Kneeland v. State, 2017 WL 1535103, at *4 (Tex.
App.--Beaumont Apr. 26, 2017).
        Those state cases that have found such a conviction is a CIMT deal with statutes that
involve some aggravating factor beyond mere resisting, fleeing, or evading. People v. Dewey,
49 Cal. Rptr. 2d 537 (Cal. App. 6th Dist. 1996) (holding that intent to evade pursuing peace
officers in willful and wanton disregard of safety of persons or property is a CIMT--i.e., use
of car); Matter of Vainio, 787 P.2d 744, 745 (Mont. 1989) ("An aggravated case of resisting
arrest is a crime involving moral turpitude"); Hall, 411 S.E.2d at 443 (noting that violent
resistance would constitute a CIMT).
        The same is true of federal decisions holding as such. Cano v. U.S. Atty. Gen., 709
F.3d 1052, 1054 (11th Cir. 2013) ("[B]ecause Fla. Stat. § 843.01 requires intentional violence
against an officer, it criminalizes “conduct [that] exhibits a deliberate disregard for the law,
which we consider to be a violation of the accepted rules of morality and the duties owed to
society."); see also Cano-Oyarzabal v. Holder, 774 F.3d 914, 915 (7th Cir. 2014) (involves use
of car and attendant risks); Ruiz-Lopez v. Holder, 682 F.3d 513, 521 (6th Cir. 2012) (involves
use of car and attendant risks).
        State cases discussing moral turpitude in other contexts likewise conclude such a
conviction is not a CIMT. Landis v. Taylor, 5 Ohio N.P. 216 (Ohio Com. Pleas 1898)
(observing that "resisting an officer" "do[es] not involve moral turpitude"); Spronken v. City
Ct. of City of Tucson, 633 P.2d 1055, 1057 (Ariz. App. 2d Div. 1981) (finding that "resisting
arrest" does not involve moral turpitude).
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                                       No. 15-60722


                                             III.
       We hold that Texas Penal Code § 38.04, evading arrest or detention, is a
divisible statute because its subparts articulate different crimes. Using the
modified categorical approach, we find that Laryea was convicted of a Class A
misdemeanor for fleeing from a lawful arrest, which is not a CIMT. Therefore,
Laryea’s petition for review is GRANTED. We VACATE the BIA’s order and
REMAND for further proceedings consistent with this opinion.




       Finally, the BIA has said that a conviction under Texas's resisting arrest statute is
not a CIMT. Matter of Garcia-Lopez, 2007 WL 4699842, at *2 (BIA Nov. 2, 2007) (holding
that a conviction under Texas Penal Code § 38.03(a) - intentionally resisting arrest - is not a
CIMT).
                                              9
