                                                                                 FILED
                                                                     United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                          Tenth Circuit

                           FOR THE TENTH CIRCUIT                            April 28, 2016
                       _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
MARIO MARTINEZ GARCIA,

      Petitioner,

v.                                                          No. 15-9564
                                                        (Petition for Review)
LORETTA E. LYNCH, United States
Attorney General,

      Respondent.
                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before KELLY, PORFILIO, and BALDOCK, Circuit Judges.
                  _________________________________

      An immigration judge (IJ) pretermitted petitioner Mario Martinez Garcia’s

request for cancellation of removal, finding he had been convicted of a crime

involving moral turpitude (CIMT). Mr. Garcia moved for reconsideration; the IJ

denied his motion. He appealed that denial to the Board of Immigration Appeals

(BIA), which dismissed his appeal. Mr. Garcia now seeks review of the BIA’s

decision. Discerning no abuse of discretion, we deny the petition for review.


      *
             After examining the briefs and appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is
therefore submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   BACKGROUND

      Mr. Garcia is a native and citizen of Mexico who entered this country on an

unknown date without being lawfully admitted or paroled. In proceedings before the

IJ, he admitted the factual allegations of the notice to appear and conceded the charge

of removal, but indicated he would seek discretionary cancellation of removal.

See 8 U.S.C. § 1229b(b).

      If previously convicted of a CIMT, however, Mr. Garcia would be ineligible

for cancellation of removal. Id. §§ 1229b(b)(1)(C), 1227(a)(2)(A)(i). As an alien

seeking affirmative relief, he had the burden to prove the absence of any impediment

to discretionary relief, including the absence of a conviction for a CIMT. Garcia v.

Holder, 584 F.3d 1288, 1290 (10th Cir. 2009); see also 8 C.F.R. § 1240.8(d) (stating

that alien has “burden of establishing that he or she is eligible for any requested

benefit or privilege. If the evidence indicates that one or more of the grounds for

mandatory denial of the application for relief may apply, the alien shall have the

burden of proving by a preponderance of the evidence that such grounds do not

apply.”).

      As part of proceedings before the IJ, Mr. Garcia submitted a copy of a 2006

Deferred Adjudication Judgment from Dallas County, Texas. That judgment showed

he had been charged with “Assault DV,” a Class “A” misdemeanor. Admin. R. at 84.

Mr. Garcia pleaded nolo contendere to the charge and was sentenced to a fine and




                                            2
community supervision. See id.1 The parties agree that the statute of conviction was

Texas Penal Code § 22.01(a).

      That section states:

      (a) A person commits an [assault] offense if the person:
      (1) intentionally, knowingly, or recklessly causes bodily injury to another,
      including the person’s spouse;
      (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.
      Texas law defines “bodily injury” as “physical pain, illness, or any impairment

of physical condition.” Id. § 1.07(a)(8).

      At a subsequent hearing,2 the IJ found, based on the limited evidence that

Mr. Garcia had submitted, that the Texas assault conviction was for “assault domestic

violence” and was a CIMT that made Mr. Garcia statutorily ineligible for

      1
              The judgment also bore a handwritten notation reading “NO
CONVICTION.” Admin. R. at 84. Mr. Garcia does not argue that this language
affects the question of whether he was convicted of a CIMT.
      2
              The hearings in this case took place in Dallas, Texas as well as
Oklahoma City, and the IJ’s decisions were issued from the Dallas Immigration
Court. Prior to the final hearing, however, the hearing location was changed to
Oklahoma City, and Mr. Garcia appeared at his final hearing in Oklahoma City with
the IJ appearing from Dallas via remote conferencing. The parties do not dispute that
venue for the petition for review is proper in this court. Proper venue under 8 U.S.C.
§ 1252(b)(2) is not jurisdictional. Lee v. Lynch, 791 F.3d 1261, 1263-64 (10th Cir.
2015). Even if certain factors point to venue in the Fifth Circuit, see id. at 1266
(identifying factors pertinent to venue), other factors such as Mr. Garcia’s presence
in Oklahoma and the use of teleconferencing favor venue in this court. Moreover,
the interests of justice do not favor a transfer to the Fifth Circuit, particularly where
neither party has sought a transfer.
                                            3
cancellation relief. Admin. R. at 51. The IJ issued a brief written order pretermitting

Mr. Garcia’s request for cancellation of removal and granting his request for

voluntary departure. In the alternative, he ordered him removed to Mexico.

      Mr. Garcia filed a motion for reconsideration. In his motion, he argued that

his 2006 assault conviction was not categorically a CIMT. He also stated that he had

requested “the full and complete court file” concerning that conviction from the

Dallas County Court Clerk. Id. at 68. But he did not submit a copy of the indictment

or information relevant to the assault conviction.

      In his decision denying reconsideration, the IJ noted that Mr. Garcia had the

burden of proof to show that he had not been convicted of a disqualifying offense.

The Deferred Adjudication Judgment showed that he had been convicted of a Class A

misdemeanor, meaning that he must have been convicted under § 22.01(a)(1) rather

than the other subsections of § 22.01(a), which are Class C misdemeanors. Thus, the

IJ reasoned, his crime was a CIMT that disqualified him from relief.

      The IJ also addressed Mr. Garcia’s other argument, involving the so-called

“petty offense exception” to the CIMT bar. The cancellation-of-removal statute

provides that an alien is ineligible for relief if he has been “convicted of an offense

under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title.” 8 U.S.C.

§ 1229b(b)(1)(C). One of these sections, § 1182(a)(2), contains a “petty offense

exception.” This exception applies if the alien committed only one crime and the

maximum penalty possible for the alien’s CIMT did not exceed imprisonment for one

year, and if the alien was not sentenced to a term of imprisonment in excess of six

                                            4
months. 8 U.S.C. § 1182(a)(2)(A)(ii)(II). Mr. Garcia contended that his conviction

met the petty offense exception, and he therefore remained eligible for cancellation

relief. The IJ rejected this argument, concluding that Mr. Garcia was ineligible

because he had been convicted of a CIMT described under 8 U.S.C. § 1227(a)(2),

even if such conviction also fell within the exception described in

§ 1182(a)(2)(A)(ii)(II).

      On appeal, the BIA agreed with the IJ’s analysis. Citing Esparza-Rodriguez

v. Holder, 699 F.3d 821, 825-26 (5th Cir. 2012), a case analyzing an alien’s

conviction under § 22.01(a)(1), the BIA concluded that Mr. Garcia had been

convicted of a CIMT. The BIA also agreed with the IJ that Mr. Garcia’s conviction

of an offense described in § 1227(a)(2)(A)(i) made him ineligible for cancellation

relief, even if the offense also fell under the petty offense exception of

§ 1182(a)(2)(A)(ii)(II).

                                     DISCUSSION

      Our standard of review is a narrow one. We review the agency’s denial of a

motion for reconsideration for an abuse of discretion. See Belay-Gebru v. INS,

327 F.3d 998, 1000 n.5 (10th Cir. 2003). “The BIA abuses its discretion when its

decision provides no rational explanation, inexplicably departs from established

policies, is devoid of any reasoning, or contains only summary or conclusory

statements.” Tang v. Ashcroft, 354 F.3d 1192, 1194 (10th Cir. 2003) (internal

quotation marks omitted). Because a single member of the BIA affirmed the IJ’s

denial of petitioner’s motion for reconsideration in a brief order, we review the BIA’s

                                            5
order rather than the decision of the IJ. See Uanreroro v. Gonzales, 443 F.3d 1197,

1204 (10th Cir. 2006). “However, when seeking to understand the grounds provided

by the BIA, we are not precluded from consulting the IJ’s more complete explanation

of those same grounds.” Id.

      1. Crime Involving Moral Turpitude

      A “‘crime involving moral turpitude’ is not defined by statute, [but] we have

said that moral turpitude refers to conduct which is inherently base, vile, or depraved,

contrary to the accepted rules of morality and the duties owed between man and man,

either one’s fellow man or society in general.” Rodriguez–Heredia v. Holder,

639 F.3d 1264, 1268 (10th Cir. 2011) (internal quotation marks and brackets

omitted). “To determine whether a state conviction is a [CIMT], we ordinarily

employ the categorical approach.” Id. at 1267. Under this approach, we consider

only the statutory definition of the offense, without regard to the particular factual

circumstances of the alien’s conviction. Id. A state conviction qualifies as a CIMT

“only if all violations of the statute would qualify, regardless of how the specific

offender might have committed it on a particular occasion.” United States v. Trent,

767 F.3d 1046, 1052 (10th Cir. 2014) (internal quotation marks and brackets

omitted), cert. denied, 135 S. Ct. 1447 (2015).

      A conviction under Texas Penal Code § 22.01(a) is not categorically a CIMT,

because the conduct proscribed by subsection (a)(3) of the statute, which consists of

merely offensive or provocative contact, does not qualify as morally turpitudinous.

See, e.g., In re Solon, 24 I. & N. Dec. 239, 241 (BIA 2007) (“Many simple assault

                                            6
statutes prohibit a wide range of conduct or harm, including de minimis contact or

harm, such as offensive or provocative physical contact or insults, which is not

ordinarily considered to be inherently vile, depraved, or morally reprehensible.”).

If a state conviction is not categorically a CIMT, in appropriate cases we may turn to

what is referred to as the “modified categorical approach.” Trent, 767 F.3d at 1052.

“This approach is warranted when a statute is divisible: that is, when it sets out one

or more elements of the offense in the alternative. . . .” Id. (internal quotation marks

omitted). Under this approach we “examine[ ] certain definitive underlying

documents to determine which alternative the [alien’s] conviction satisfied,” id.,

i.e., whether he was convicted under alternative elements that qualify as a CIMT or

alternative elements that do not.

      The IJ and the BIA determined that § 22.01 was a divisible statute, that

Mr. Garcia had been convicted under subsection (a)(1), and that a conviction under

subsection (a)(1) qualified as a CIMT. Mr. Garcia argues that a conviction under

subsection (a)(1) is not necessarily a CIMT because such a conviction does not

require any aggravating factor necessary to turn a simple assault into a CIMT, and

because subsection (a)(1) permits a conviction with only reckless intent.

      “[I]n the context of assault crimes, a finding of moral turpitude involves an

assessment of both the state of mind and the level of harm required to complete the

offense.” Solon, 24 I. & N. Dec. at 242. Although an aggravating factor such as

“serious physical injury or the use of a deadly weapon . . . can be important in

determining whether a particular assault amounts to a [CIMT] . . . the need for, and

                                           7
the nature of, any aggravating factor is affected by the mental state required for the

conviction.” Id. at 245. “[A]s the level of conscious behavior decreases, i.e., from

intentional to reckless conduct, more serious resulting harm is required in order to

find that the crime involves moral turpitude.” Id. at 242.

      Where mere recklessness is involved, assault will be treated as a CIMT only

where “the element of a reckless state of mind [is] coupled with an offense involving

the infliction of serious bodily injury.” In re Fualaau, 21 I. & N. Dec. 475, 478

(BIA 1996). But serious bodily injury is not required where specific intent is

involved; an assault defined to include “both specific intent and physical injury[] is a

crime involving moral turpitude.” Solon, 24 I. & N. Dec. at 243.

      Thus, a conviction under § 22.01(a)(1) for “recklessly caus[ing] bodily injury

to another,” which would require neither a showing of specific intent to harm nor

serious bodily injury or some other aggravating factor, would likely not involve a

CIMT. But the record in this case is inconclusive concerning whether Mr. Garcia

was charged with and pled no contest to mere recklessness or to intentionally and

knowingly causing bodily injury to another—defined under Texas law as causing

physical pain, illness, or impairment. Under the authority relied on by the BIA,

a conviction for intentional and knowing assault under § 22.01(a)(1) would be

sufficient basis for a CIMT finding, even if the only bodily injury statutorily required

was one that went beyond an offensive touching. See Esparza-Rodriguez, 699 F.3d

at 825-26 (relying on indictment that charged intentional or knowing assault under

§ 22.01(a)(1) to conclude that alien was convicted of “an intentional or knowing

                                           8
assault . . . which, statutorily, did cause bodily injury beyond an offensive touching”

and thus had been convicted of a CIMT).3

      As we have noted, Mr. Garcia affirmatively sought discretionary relief to

prevent his removal from this country and therefore had the burden to prove the

absence of any impediment to discretionary relief, including the absence of a

conviction for a CIMT. Garcia, 584 F.3d at 1289-90 (stating alien who sought

cancellation of removal, voluntary departure, and temporary protected status relief

had burden of showing he was convicted of only recklessly, rather than knowingly,

causing bodily injury and thus had not been convicted of a CIMT); 8 C.F.R.

§ 1240.8(d). Had he provided the indictment or other charging document, it could

have been used to resolve the issue of whether he had been charged and pled to a

knowing or intentional assault, as was the case in Esparza-Rodriguez, or whether the

charge included mere recklessness. See Descamps v. United States, 133 S. Ct. 2276,

2285 n.2 (2013) (“Whatever a statute lists (whether elements or means), the . . .

indictment, jury instructions, plea colloquy, and plea agreement . . . reflect the

crime’s elements. . . . [Thus, when] a state law is drafted in the alternative, the

      3
              The inconclusive nature of the record here, leaving open the possibility
of a conviction for knowing or intentional assault with bodily injury, distinguishes
cases on which Mr. Garcia relies. In Fualaau, the alien’s guilty plea specifically
indicated he had been convicted of only reckless assault. Fualaau, 21 I. & N. Dec.
at 476, 478. In In re Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992), the alien
was convicted of causing injury “with criminal negligence.” Id. at 618 (internal
quotation marks omitted). To the extent it is factually similar, In re Rosas-Barron,
No. A75 211 954, 2005 WL 649135 (BIA Jan. 10, 2005) is an unpublished decision
without precedential value. See Guillen-Garcia v. INS, 60 F.3d 340, 345 (7th Cir.
1995) (stating unpublished BIA decisions have no precedential value and failure to
apply them does not represent an abuse of discretion).
                                            9
court . . . resorts to the approved documents [including the indictment] and compares

the elements revealed there to those of the generic offense” (emphasis added));

cf. United States v. Ridens, 792 F.3d 1270, 1272-73 (10th Cir.) (approving use of

“generically limited charging document” that “narrowed the charges to the generic

limit” as part of modified categorical approach), cert. denied, 136 S. Ct. 494 (2015).

But because the record is inconclusive, Mr. Garcia has failed to demonstrate that the

BIA abused its discretion in relying on Esparza-Rodriguez to conclude that he was

ineligible for cancellation of removal relief. See Garcia, 584 F.3d at 1290.

      2. “Petty Offense Exception”

      Mr. Garcia also argues that even if he had been convicted of a CIMT, the BIA

should have followed In re Garcia-Hernandez, 23 I. & N. Dec. 590 (BIA 2003), and

found him eligible for relief. In that case, the BIA held that an alien who had been

convicted of a CIMT that qualified for the “petty offense” exception in 8 U.S.C.

§ 1182(a)(2)(A)(ii)(II) was eligible to apply for cancellation of removal. See

Garcia-Hernandez, 23 I. & N. Dec. at 592-93. In later cases, however, the BIA has

explained that even where a CIMT qualifies for the petty offense exception, the alien

is ineligible for cancellation of removal if his crime also qualifies as a CIMT under

§ 1227(a)(2)(A)(i)—a subsection that does not contain an exception for petty

offenses. See, e.g., In re Cortez, 25 I. & N. Dec. 301, 311 (BIA 2010).

      Mr. Garcia argues that the result in these later cases conflicts with

Garcia-Hernandez, and the BIA should therefore have followed its earlier case. But

the BIA has explained that Garcia-Hernandez did not resolve the issue of whether an

                                          10
alien subject to the “petty offense” exception in § 1182(a)(2)(A)(ii)(II) is nonetheless

ineligible for cancellation under § 1227(a)(2) because the issue simply “was not

raised by the parties” in Garcia-Hernandez. In re Cortez, 25 I. & N. Dec. at 309.

Thus, there is no conflict and the BIA was not required to follow its prior result in

Garcia-Hernandez.

      We have considered the additional arguments Mr. Garcia raises concerning

this point, and found them unpersuasive. The BIA did not abuse its discretion in

concluding that he was ineligible for cancellation of removal notwithstanding the

petty offense exception.

                                   CONCLUSION

      The petition for review is denied.


                                                      Entered for the Court


                                                      Bobby R. Baldock
                                                      Circuit Judge




                                           11
