     Case: 13-60379      Document: 00512550671         Page: 1    Date Filed: 03/05/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-60379
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            March 5, 2014
RAFAEL RIVAS MANCIAS,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A200 944 719


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Rafael Rivas Mancias (Rivas), a native and citizen of Mexico, petitions
for review of a decision of the Board of Immigration Appeals (BIA) finding him
ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1). He does not
brief any challenge to the determination that he was ineligible for voluntary
departure. Accordingly, he has abandoned any challenge to that ruling. See
Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60379

      Rivas argues that, contrary to the BIA’s decision, his prior conviction
under Texas Penal Code § 38.02 is not a crime involving moral turpitude
(CIMT) as set forth in 8 U.S.C. § 1227(a)(2) and thus does not bar his eligibility
for cancellation of removal under § 1229b(b)(1). Additionally, he contends that,
to prevail before the BIA, he should not have been required to cite a published
or unpublished case to show that § 38.02(b) had been applied previously to
conduct not involving moral turpitude.
      We have jurisdiction to review questions of law, including whether an
offense is a CIMT. 8 U.S.C. § 1252(a)(2)(D); Garcia-Maldonado v. Gonzales,
491 F.3d 284, 287-88 (5th Cir. 2007). This court and the BIA employ separate
analytical paths to determine whether an alien’s prior offense constitutes a
CIMT. See Nino v. Holder, 690 F.3d 691, 694-95 (5th Cir. 2012) (comparing
this court’s categorical analysis and the BIA’s analysis, which is derived from
Matter of Silva-Trevino, 24 I. & N. Dec. 687, 696-99 (A.G. 2008)); see also Silva-
Trevino v. Holder, ___ F.3d ___, 2014 WL 341213, at *1, 7 (5th Cir. 2014) (holding
that the last prong of the analysis set forth in Silva-Trevino, 24 I. & N. Dec. at
699, which is not at issue herein and permits the adjudicator to look beyond
the alien’s record of conviction in reviewing a prior offense, was impermissible
under this court’s precedent).    Using either analytical path, Rivas’s prior
offense is a CIMT.
      An alien is eligible for cancellation of removal if, among other
requirements, the alien has not been convicted of an offense under § 1227(a)(2),
which relevantly includes any alien who is convicted of a CIMT.               See
§ 1229b(b)(1)(C); § 1227(a)(2)(A)(i).    Texas Penal Code § 38.02 does not
categorically describe offenses involving moral turpitude. See Nino, 690 F.3d
at 694-95. For example, a person violates § 38.02(a) by intentionally refusing
to give his name, residential address, or birth date to a peace officer who has



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                                  No. 13-60379

arrested the person and asked for the information. Such an offense does not
involve dishonesty or lying, see Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir.
2002), or “shock[ ] the public conscience as being inherently base, vile, or
depraved, and contrary to the accepted rules of morality and the duties owed
between persons or to society in general.” See Nino, 690 F.3d at 694 (internal
quotation marks and citation omitted). Thus, even if, as described in Silva-
Trevino, 24 I. & N. Dec. at 697-98, Rivas had produced a case showing § 38.02’s
application to conduct not involving moral turpitude, the BIA could not have
categorically treated all convictions under § 38.02 as CIMTs. See Nino, 690
F.3d at 694-95.
      Because § 38.02 does not categorically describe CIMTs, a modified
categorical approach is used to determine whether Rivas was convicted under
a part of § 38.02 that describes a CIMT. See id. The record reflects that Rivas
was convicted of the offense described in § 38.02(b).          A person violates
§ 38.02(b) by intentionally giving a false or fictitious name, residential address,
or birth date to someone known to be a peace officer, who has lawfully arrested
or detained the person or who has requested the information from a person
believed to have witnessed a crime. See § 38.02(b); Green v. State, 951 S.W.2d
3, 4 (Tex. Crim. App. 1997). This offense involves dishonesty or lying and the
government, to obtain a conviction, must prove that “the defendant acted . . .
intentionally [to] deceive[] someone.” See Omagah, 288 F.3d at 260. Therefore,
the offense is a CIMT for immigration purposes. See id. Accordingly, the BIA
did not err in finding that Rivas’s prior conviction precluded him from seeking
cancellation of removal under § 1229b(b)(1).
      Rivas’s petition for review is DENIED.




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