     Case: 09-60531     Document: 00511185113          Page: 1    Date Filed: 07/26/2010




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

                                                 FILED
                                                                            July 26, 2010
                                     No. 09-60531
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

DAVID JULIUS LAZARO,

                                                   Petitioner

v.

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

                                                   Respondent


                         Petitions for Review of Orders of the
                            Board of Immigration Appeals
                                BIA No. A097 672 983


Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
        David Julius Lazaro, a native and citizen of Tanzania, petitions this court
for review of the Board of Immigration Appeals’ (BIA) decision dismissing his
appeal of the Immigration Judge’s order that he was removable under 8 U.S.C.
§ 1227(a)(2)(A)(i) and (a)(2)(A)(ii) because he (a) committed within five years of
his lawful admission a crime of moral turpitude, and (b) was convicted after his
admission of two crimes involving moral turpitude that did not arise out of a



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60531

single scheme of criminal misconduct. He also petitions this court for review of
the BIA’s denial of his motion for reconsideration.
      Lazaro argues on appeal that his prior offenses – i.e., an assault family
violence offense under T EX. P ENAL C ODE A NN. § 22.01 (Vernon 2003) and a theft
offense under T EX. P ENAL C ODE A NN. § 31.03 (Vernon 2003) – are not crimes of
moral turpitude. He does not dispute the BIA’s conclusion that he is ineligible
for cancellation of removal, and he therefore has abandoned any challenge on
that ground. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
      We apply a two-part standard of review to the BIA’s conclusion that
Lazaro committed a crime involving moral turpitude. Amouzadeh v. Winfrey,
467 F.3d 451, 455 (5th Cir. 2006). First, we accord substantial deference to the
BIA’s interpretation of the Immigration and Nationality Act and its definition
of the phrase “moral turpitude.” Id. Second, we review de novo whether the
elements of a state or federal crime fit the BIA’s definition of a crime involving
moral turpitude.    Id   The BIA’s determination of what constitutes moral
turpitude must be upheld if that determination is reasonable. Hamdan v. INS,
98 F.3d 183, 185 (5th Cir. 1996).
      Section 22.01, which criminalizes assault, encompasses acts that both are
and are not crimes of moral turpitude; we therefore must review the record of
conviction to determine whether Lazaro’s offense falls into a subsection that is
a crime of moral turpitude. See Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th
Cir. 2006). The record reveals that Lazaro was convicted under the provision of
§ 22.01 that provides enhanced punishment to a defendant convicted of multiple
assaults against persons with whom he has a special relationship.             See
§ 22.01(b)(2)(A).   In this case, the conditions of supervision portion of the
judgment, which requires Lazaro to participate in domestic violence treatment
programs, confirms that the victim of the offense was his wife. Moreover, the
charging instrument, which states that Lazaro caused bodily injury to his wife
by striking, pulling, and grabbing her, reveals that Lazaro was convicted of an

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                                 No. 09-60531

intentional and injurious crime. Thus, because the record shows that Lazaro
was convicted of intentionally inflicting bodily injury upon his wife, the BIA’s
conclusion that his assault offense was a crime involving moral turpitude was
reasonable. See In re Tran, 21 I&N Dec. 291, 294 (BIA 1996) (holding that
statute requiring the willful infliction of corporal injury resulting in a traumatic
condition upon, inter alia, the perpetrator’s spouse was crime involving moral
turpitude); see also In re Sanudo, 23 I&N at 970-71 (indicating that moral
turpitude necessarily inheres in assault and battery offenses that involve the
infliction of bodily harm upon a person whom society views as deserving of
special protection, such as a domestic partner).
      Under § 1227(a)(2)(A)(i), an alien is removable if he has been convicted of
a crime of moral turpitude within five years after the date of admission, and a
sentence of one year or longer may be imposed for the offense. Lazaro does not
dispute that his assault offense was punishable by a term of more than one year
of imprisonment or was committed within five years of his admission. Thus, any
challenge to either the sentence that could be imposed for his offense or the date
used to determine his date of admission are abandoned. See Soadjede, 324 F. 3d
at 833. Lazaro has not demonstrated that the BIA wrongly found that he was
removable under § 1227(a)(2)(A)(i), and his petition for review of the BIA’s
dismissal of his appeal should be denied. Because Lazaro is removable under
§ 1227(a)(2)(A)(i), we need not review whether the BIA also correctly found that
he was removable under § 1227(a)(2)(A)(ii).
      Lazaro timely filed a separate petition for review from the BIA’s denial of
his motion for reconsideration. However, his brief to this court addresses only
the BIA’s decision dismissing his appeal; he raises no issues with respect to the
BIA’s denial of his motion for reconsideration. Accordingly, any challenge to the
BIA’s denial of his motion for reconsideration has been waived. See Soadjede,
324 F.3d at 833.
      For the foregoing reasons, Lazaro’s petitions for review are DENIED.

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