                 REVISED DECEMBER 11, 2012
          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                                 Fifth Circuit

                                                                              FILED
                                                                            October 18, 2012
                                        No. 11–60548
                                                                             Lyle W. Cayce
                                                                                  Clerk
GASPAR ESPARZA-RODRIGUEZ,

                                                    Petitioner
v.

ERIC HOLDER, JR.,

                                                    Respondent



                         Appeal from the United States Board
                               of Immigration Appeals



Before KING and HIGGINSON, Circuit Judges, and FOOTE1, District Judge.
HIGGINSON, Circuit Judge:
      Petitioner Gaspar Esparza-Rodriguez (“Rodriguez”) seeks review of the
final order of the Board of Immigration Appeals (“BIA”) finding him ineligible
for cancellation of removal under § 240A(b)(9)(C) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1229b(b)(1)(C), and deeming him ineligible
to be admitted to the United States under § 212(a)(2)(A)(i)(I) of the INA, 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), on the basis that the Texas assault statute for which he was
convicted qualified as a crime involving moral turpitude (“CIMT”). For the
following reasons, we AFFIRM.


      1
          District Judge of the Western District of Louisiana, sitting by designation.
                                          No. 11-60548

                             FACTS AND PROCEEDINGS
       Rodriguez is a Mexican citizen who was admitted to the United States as
a legal permanent resident on February 15, 1995. On April 18, 2001, he was
convicted of two Class A misdemeanors: burglary of a vehicle under Texas Penal
Code § 30.04(a) and assault under Texas Penal Code § 22.01. He was sentenced
to sixty days in jail for each offense. After serving his sentence, Rodriguez
returned to Mexico. On June 23, 2010, Rodriguez applied for entry into the
United States as a legal permanent resident. The Department of Homeland
Security (“DHS”) initiated removal proceedings against him by filing a Notice to
Appear (“NTA”) in immigration court.                    The NTA charged him under §
212(a)(2)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(2)(A)(i)(I),2 as an alien ineligible
for admission into the United States on account of his prior misdemeanor
conviction for a CIMT.
       On August 13, 2010, Rodriguez appeared before an Immigration Judge
(“IJ”), admitted to the seven factual allegations listed in the NTA, and denied the
charge against him. Rodriguez later submitted an application for cancellation
of removal under § 240A(a) of the INA, 8 U.S.C. § 1229b(a),3 and moved to
terminate his removal proceedings, arguing that his assault conviction was not
a CIMT and his burglary of a vehicle conviction fell within the petty offense


       2
        8 U.S.C. § 1182(a)(2)(A)(i) states, in pertinent part: “Except as provided in clause (ii),
any alien convicted of, or who admits having committed, or who admits committing acts which
constitute the essential elements of -- (I) a crime involving moral turpitude . . . is inadmissible.”
8 U.S.C. § 1182(a) correspondingly provides, in pertinent part, that “aliens who are
inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be
admitted to the United States.”


       3
         8 U.S.C. § 1229b(a) states:
       The Attorney General may cancel removal in the case of an alien who is
       inadmissible or deportable from the United States if the alien--(1) has been an
       alien lawfully admitted for permanent residence for not less than 5 years, (2)
       has resided in the United States continuously for 7 years after having been
       admitted in any status, and (3) has not been convicted of any aggravated felony.

                                                 2
                                        No. 11-60548

exception under § 212(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1182(a)(2)(A)(ii)(II).4
After a hearing on February 16, 2011, the IJ determined that Rodriguez’s
assault conviction was for a CIMT, denied his application for cancellation of
removal, and ordered him removed from the United States to Mexico. Rodriguez
appealed the ruling to the BIA, which denied his request for oral argument and
dismissed his appeal. Rodriguez timely appealed the BIA’s decision to this court.
                                       DISCUSSION
       Section 212(a)(2)(A)(i) of the INA provides, in pertinent part, that an alien
“convicted of, or who admits having committed, or who admits committing acts
which constitute the essential elements of . . . a crime involving moral turpitude
. . . is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Aliens deemed inadmissible
under the INA are “ineligible to be admitted to the United States” under § 212(a)
of the INA, 8 U.S.C. § 1182(a), and, if already present, are “deportable” under §
237(a)(1)(A) of the INA, 8 U.S.C.A. § 1227(a)(1)(A).5 Because the INA does not
define the term “moral turpitude” and legislative history does not clarify which
crimes Congress intended to characterize as turpitudinous, we have concluded
that “the interpretation of this provision [was left] to the BIA and interpretation
of its application to state and federal laws [was left] to the federal courts.”
Rodriguez-Castro v. Gonzales, 427 F.3d 316, 320 (5th Cir. 2005).



       4
         8 U.S.C. § 1182(a)(2)(A)(ii) states, in pertinent part:
       Clause (i)(I) shall not apply to an alien who committed only one crime if . . . (II)
       the maximum penalty possible for the crime of which the alien was convicted (or
       which the alien admits having committed or of which the acts that the alien
       admits having committed constituted the essential elements) did not exceed
       imprisonment for one year and, if the alien was convicted of such crime, the
       alien was not sentenced to a term of imprisonment in excess of 6 months
       (regardless of the extent to which the sentence was ultimately executed).


       5
         8 U.S.C. § 1227(a)(1)(A) states, in pertinent part: “Any alien who at the time of entry
or adjustment of status was within one or more of the classes of aliens inadmissible by the law
existing at such time is deportable.”

                                                3
                                  No. 11-60548

       Through its administrative decisions, the BIA has defined “moral
turpitude” as encompassing 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.” In re Solon, 24 I. & N. Dec. 239, 241–42 (BIA
2007); Garcia-Maldonado v. Gonzales, 491 F.3d 284, 288 (5th Cir. 2007). 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. See Smalley v. Ashcroft, 354 F.3d 332, 335–36
(5th    Cir.   2003).      “[T]his    two-step    approach      provides    both
consistency—concerning the meaning of moral turpitude—and a proper regard
for the BIA’s administrative role—interpretation of federal immigration laws,
not state and federal criminal statutes.” Id.
       Because the term “assault” captures “a broad spectrum of misconduct,
ranging from relatively minor offenses, e.g., simple assault, to serious offenses,
e.g., assault with a deadly weapon,” In re Fualaau, 21 I. & N. Dec. 475, 477 (BIA
1996), the BIA has explained that determining whether an assault statute is a
CIMT requires “an assessment of both the state of mind and the level of harm
required to complete the offense.” In re Solon, 24 I. & N. Dec. at 242. To rise to
the level of a CIMT, the BIA has held that an assault statute must have at least
two characteristics. First, the scienter element must require specific intent, or,
put another way, the actus reus must be accompanied by “the evil intent,
depraved or vicious motive, or corrupt mind associated with moral turpitude.”
Id. at 241. Second, the assault statute must require “a meaningful level of harm,
which must be more than mere offensive touching.” Id. at 241–42. Several




                                        4
                                       No. 11-60548

courts, but not all, and the BIA, but not always, require also an aggravating
element indicative of the inherent vileness of the prohibited conduct.6
       Having detailed the characteristics an assault statute must have to be
considered a CIMT, we turn to Rodriguez’s crime of conviction. Texas Penal
Code § 22.01(a) (Assault) states:
       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.

“Bodily injury” is defined under Texas law as “physical pain, illness, or any
impairment of physical condition.” TEX. PENAL CODE ANN. § 1.07(a)(8). This
“purposefully broad” definition of bodily injury encompasses “even relatively
minor physical contacts so long as they constitute more than mere offensive
touching.” Morales v. State, 293 S.W.3d 901, 907 (Tex. Crim. App. 2009).



       6
          See Nguyen v. Reno, 211 F.3d 692, 695 (1st Cir. 2000) (explaining that “an assault
may or may not be a crime of moral turpitude,” noting that “the dividing line is the
aggravating element”); Uppal v. Holder, 605 F.3d 712, 717 (9th Cir. 2010) (“[T]o rise to the
level of moral turpitude, an assault crime must involve a particular type of aggravating factor,
one that says something about the turpitude or blameworthiness inherent in the action.”).
Contra Mustafaj v. Holder, 369 F. App’x 163, 168–69 (2d Cir. 2010) (unpublished) (holding that
a New York assault statute qualified as a CIMT even though it lacked an aggravating factor).
The BIA’s decision-making on this point also has been uneven. Compare Matter of Ahortalejo-
Guzman, 25 I. & N. Dec. 465, 465 (BIA 2011) (explaining that simple assault is not a CIMT
unless it “necessarily involves some aggravating factor that indicates the perpetrator's moral
depravity”), with In re Solon, 24 I. & N. Dec. at 242–46 (explaining that although “the
presence of an aggravating factor can be important in determining whether a particular
assault amounts to a crime involving moral turpitude . . . the need for, and the nature of, any
aggravating factor is affected by the mental state required for the conviction”).

                                               5
                                        No. 11-60548

       We approach whether a particular statute meets the BIA’s definition of
moral turpitude in two ways. The first approach, known as the categorical
approach, assesses whether “the minimum reading of the statute necessarily
reaches only offenses involving moral turpitude.” Amouzadeh v. Winfrey, 467
F.3d 451, 454–55 (5th Cir. 2006). If so, we end our inquiry there. Id. If,
however, the statute has multiple subsections or an element phrased in the
disjunctive, such that some violations of the statute would involve moral
turpitude and others not, we apply the modified categorical approach, under
which we examine the record of conviction7 to determine under which subsection
the alien was convicted and which elements formed the basis for the conviction.
See Bianco v. Holder, 624 F.3d 265, 268–69 (5th Cir. 2010); Amouzadeh, 467 F.3d
at 455; see also Calderon-Dominguez v. Mukasey, 261 F. App’x 671, 673 n.9 (5th
Cir. 2008) (unpublished). After identifying the elements of the particular crime
of conviction, we inquire whether those elements, considered as a whole,
constitute a CIMT.8 Id.
       The categorical approach, applied to this case, does not resolve the matter
because a subsection of the Texas assault statute, § 22.01(a)(3), proscribes
physical contact that is merely “offensive or provocative,” conduct that the BIA

       7
         Where, as here, a defendant has pleaded guilty to the offense, the record of conviction
consists of “the charging document, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the trial judge to which the defendant assented.” Bianco v.
Holder, 624 F.3d 265, 269 (5th Cir. 2010).
       8
         As additional guidance, we note that both the BIA decision on review, and also the
government in argument, advert to a “third step” inquiry looking at facts outside the record
of conviction, pursuant to Matter of Silva-Trevino, 24 I. & N. Dec. 687, 704 (A.G. 2008). This
approach, broadly defined, is inconsistent with our decision in Bianco, where we clarified that,
“Our search is for the ‘inherent nature of the crime, as defined in the statute . . . rather than
the circumstances surrounding the particular transgression.’ ” 624 F.3d at 268 (quoting Okabe,
671 F.2d at 865)). But, more narrowly defined, it should be acknowledged that Section
212(a)(2)(A)(i)’s CIMT focus is on “acts which constitute the essential elements of . . . a crime
involving moral turpitude,” and to that extent, acts charged and admitted to or proven, and
in the record of conviction, as delimited by federal law governing the modified categorical
approach, might properly be considered when BIA makes its CIMT determination.

                                               6
                                 No. 11-60548

has held does not qualify as morally turpitudinous. In re Solon, 24 I. & N. Dec.
at 241 (explaining that assault statutes which criminalize “offensive or
provocative physical contact” are not categorically CIMTs). Because § 22.01 is
not categorically a CIMT, we proceed to the modified categorical approach. See
Lazaro v. Holder, 390 F. App’x 319, 321 (5th Cir. 2010) (unpublished) (applying
the modified categorical approach after concluding that § 22.01 is not
categorically a CIMT).
      Count I of the indictment, to which Rodriguez pleaded guilty, charges him
with “intentionally or knowingly caus[ing] bodily injury to [the victim] by
striking him on the head with a flower pot . . . [and] kicking him on the side of
his body.” That language tracks the statutory elements of § 22.01(a)(1), which
proscribes “intentionally, knowingly, or recklessly caus[ing] bodily injury to
another, including the person’s spouse.” TEX. PENAL CODE ANN. § 22.01(a)(1).
His judgment and sentence reflects that he was convicted of a Class A
misdemeanor, further evidence that he pleaded guilty to violating § 22.01(a)(1).
See Calderon-Dominguez, 261 F. App’x at 673 (explaining that “only a conviction
under § 22.01(a)(1) could give rise to a Class A misdemeanor” because
subsections (a)(2) and (3) are Class C misdemeanors unless they involve an
elderly or disabled individual or a sports participant).      Stated otherwise,
Rodriguez’s guilty plea to the charged offense of striking someone on the head
and kicking him on the side of his body narrows his crime to an intentional or
knowing assault, and an assault which, statutorily, did cause bodily injury
beyond an offensive touching—indeed, did cause pain, illness or impairment.
Having determined that Rodriguez pleaded guilty to subsection (a)(1) of the
Texas assault statute, we next review the BIA’s conclusion that this subsection
is a CIMT.
      The BIA concluded, after employing the modified categorical approach,
that Rodriguez’s record of conviction “shows that his offense was committed with

                                       7
                                  No. 11-60548

the requisite level of scienter . . . and involved conduct that is ‘inherently base,
vile, or depraved, and contrary to the accepted rules of morality and the duties
owed between persons and to society in general.’ ” Its decision follows from In
re Solon, a case in which the BIA held that a New York statute proscribing
“intent to cause physical injury,” defined similarly as “impairment of physical
condition or substantial pain,” is a CIMT because it “reflects a level of depravity
or immorality appreciably greater than” that involved in simple assault or
battery crimes. 24 I. & N. Dec. at 243–45. It is also consistent with this court’s
two prior unpublished rulings that § 22.01(a)(1) is a CIMT. See Aldape-Garcia
v. Holder, 472 F. App’x 304, 305 (5th Cir. 2012) (per curiam); Calderon-
Dominguez, 261 F. App’x at 673.
      Even if we were to question the wisdom of the BIA’s considered
determination that an assault with intent to cause more than de minimis
physical injury is a CIMT, “our inquiry here centers on the reasonableness of the
BIA’s conception of the term ‘moral turpitude,’ an inquiry that is necessarily and
unavoidably constrained by the principles of Chevron deference.” Mustafaj, 369
F. App’x at 169. We therefore join the Second Circuit in concluding, in a nearly
identical context, that,
      we cannot say that it was unreasonable for the BIA, upon careful
      consideration, to conclude that an intentional assault that is
      intended to and does cause more than a de minimis level of physical
      harm, is “contrary to the accepted rules of morality and the duties
      owed between persons or to society in general.”

Id.
      We AFFIRM.




                                         8
