     Case: 14-60808     Document: 00513586769    Page: 1   Date Filed: 07/11/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                  No. 14-60808                            FILED
                                                                      July 11, 2016
                                                                     Lyle W. Cayce
HERMENEGILDO GOMEZ-PEREZ,                                                 Clerk

             Petitioner

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

             Respondent




                      Petitions for Review of an Order of the
                          Board of Immigration Appeals
                              BIA No. A200 958 511


Before JOLLY, HAYNES, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge.
      Petitioner Gomez-Perez is a Guatemalan citizen, who entered the United
States illegally in 1995 and has lived here since. He and his wife live together
in Texas with their three children, all of whom are U.S. citizens. After law
enforcement discovered Gomez’s lack of lawful status during a traffic stop, he
was placed in removal proceedings. Gomez conceded that he was removable,
but sought cancellation as a nonpermanent resident under 8 U.S.C.
§ 1229b(b)(1). Although his longevity in the United States and family ties meet
some of the eligibility requirements for a person to be considered for the
discretionary act of cancellation of removal, the immigration judge concluded
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                                 No. 14-60808
that Gomez did not meet another requirement because of a prior Texas
misdemeanor assault conviction. We must decide whether that conviction
qualifies as a “crime involving moral turpitude” that makes Gomez ineligible
for cancellation. The answer to that question comes from a recent Supreme
Court decision clarifying that we only consider the elements that would have
to be found by a jury—not mere alternative factual means by which a crime
could be committed—in determining whether a prior conviction meets a federal
statute’s classification of prior offenses, Mathis v. United States, No. 15-6092,
2016 WL 3434400, at *6 (U.S. June 23, 2016).
                                     * * *
      In 1999, Gomez was charged with misdemeanor assault under section
22.01(a)(1) of the Texas Penal Code, which states that “[a] person commits an
offense if the person intentionally, knowingly, or recklessly causes bodily
injury to another [person].” TEX. PENAL CODE § 22.01(a)(1). The charging
instrument accused Gomez of assaulting his then-roommate, stating that
Gomez “did . . . intentionally, knowingly, and recklessly cause bodily injury to
[the roommate] by hitting [the roommate] on and about the head with the
Defendant’s hand.” Gomez was convicted after a bench trial.
      Gomez was placed in removal proceedings several years later after a
2011 traffic stop. The immigration judge rejected Gomez’s application for
cancellation of removal because he found that his conviction under
section 22.01(a)(1) constituted a turpitudinous crime.           See 8 U.S.C.
§ 1229b(b)(1)(C) (excluding immigrants with prior convictions involving moral
turpitude from seeking cancellation of removal from the country). The Board
of Immigration Appeals affirmed.
      Both sides agree that the Texas assault statute viewed as a whole does
not qualify as a crime involving moral turpitude because it applies to acts that
are not intentional. See Esparza-Rodriguez v. Holder, 699 F.3d 821, 824–25
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                                  No. 14-60808
(5th Cir. 2012) (citing In Re Solon, 24 I. & N. Dec. 239, 241–42 (BIA 2007))
(recognizing that the Board requires an intentional act for a conviction to
ordinarily qualify as a crime of moral turpitude, and holding that the Texas
assault statute is not so limited).
      But both the immigration judge and Board of Immigration Appeals
concluded that section 22.01(a)(1) is a “divisible” statute. A divisible statute
allows the application of what is known as the “modified categorical approach”
to determine if the offense involved the intentional conduct that would qualify
as a crime of moral turpitude. Under the modified categorical approach, a
court may look to certain documents, including the indictment and the
judgment, to narrow an offense that otherwise would not be a categorical
match with an enumerated offense. Mathis, 2016 WL 3434400, at *4, *8 n.3;
Taylor v. United States, 495 U.S. 575, 598–602, (1990); see also Shepard v.
United States, 544 U.S. 13, 16 (2005) (listing approved documents). Although
the indictment and judgment in this case do not tell us whether Gomez’s
assault conviction involved intentional, knowing, or reckless conduct, the
Board concluded that once it is established that the offense of a prior conviction
is divisible, then the person seeking cancellation has the burden to establish
that his offense involved the lesser conduct that would not meet the
disqualifying classification. See Matter of Almanza-Arenas, 24 I. & N. Dec.
771, 776 (BIA 2009) (holding that an inconclusive record was insufficient to
carry the immigrant’s burden of proving the absence of a disqualifying
conviction). But see Sauceda v. Lynch, 819 F.3d 526, 532 & n.10 (1st Cir. 2016)
(collecting cases showing circuit split on this issue and holding that
irrespective of any “factual uncertainty” when the “modified categorical
approach . . . cannot identify the prong of the divisible [] statute under which




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                                       No. 14-60808
[the immigrant] was convicted, . . . as a matter of law, [the immigrant] [h]as
not [been] convicted of a [disqualifying offense]”). 1
       Gomez appeals on two grounds. First, he contends that the Texas statute
is not divisible. That would mean that the categorical approach applies under
which the Texas assault statute would not be disqualifying because it is not
limited to intentional conduct. Second, he argues that even if the assault
statute is divisible, he does not bear the burden of narrowing his offense. That
would mean that inconclusive court records, such as those for his assault
conviction, require reverting to the categorical approach under which the
offense would not qualify.
       Under Mathis, Gomez is correct about his first contention, so we need
not reach the burden of proof question. Mathis resolved a circuit split about
when the modified categorical approach can be applied to try to narrow a
statute when a court is considering whether that statute qualifies as a certain
type of offense under federal criminal and immigration laws.                        2016 WL
3434400, at *6. More background about the categorical approach is helpful
before explaining Mathis.
       When a state statute sets out a single or indivisible set of elements to
define a single crime, 2 courts apply the categorical approach. Id. at *4. Under
this approach, courts line up the elements of the prior offense with the
elements of the generic offense described in the federal statute to see if they
match. Id. If they do, then the individual is considered to have been convicted
of the generic offense, and certain consequences of federal law attach—here,
that consequence is ineligibility for cancellation of removal. Id. But if the


       1Our   circuit has not yet decided this issue. But see Garcia v. Holder, 756 F.3d 839,
847–48 (5th Cir. 2014) (Garza, J., specially concurring) (arguing that the petitioner should
bear the burden of proving his crime was not for a qualifying offense).
        2 An example is a statute that criminalizes “entering a [premises] . . . with the intent

to steal.” Mathis, 2016 WL 3434400, at *4.
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                                        No. 14-60808
elements of the prior offense cover conduct beyond what the generic offense
covers, then it is not a qualifying offense. Id. at *6. Under this approach, a
prior offense qualifies as a crime of moral turpitude if “the minimum reading
of the statute necessarily reaches only offenses involving moral turpitude.”
Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006) (emphasis added).
And, as mentioned, the BIA requires intentional conduct for an assault to
constitute such a crime.
       But when a statute has a divisible structure, 3 courts may apply the
modified categorical approach that permits courts to use formal court
documents to narrow the offense of conviction. Mathis, 2016 WL 3434400, at
*4. Our sister circuits were divided as to whether the modified categorical
approach applies only when a statute sets out alternative elements or also can
be used to narrow alternative means a statute sets forth. See id. at *4, *6. The
practical difference being that a jury has to agree on one of multiple elements
that a statute lists, whereas the jury need not agree on the same alternative
means so long as all jurors conclude that the defendant engaged in one of the
possible means of committing a crime.
       Mathis held that only the elements matter. Id. at *10. So when a statute
merely sets out multiple means for committing a crime, some of which match
the generic offense and others that do not, the ordinary categorical approach
applies and there is no match to the generic offense. Id. Mathis restricted the
modified categorical approach to an elements-only inquiry for a few reasons.
One is that a federal statute’s focus on “convictions” indicates a concern with
“whether ‘the defendant ha[s] been convicted of crimes falling within certain
categories,’ and not about what the defendant ha[s] actually done.” Id. at *7


       3 Consider a twist on the previous example: a statute that criminalizes “‘the lawful
entry or the unlawful entry’ of a premises with the intent to steal, so as to create two different
offenses, one more serious than the other.” Id.
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                                       No. 14-60808
(quoting Taylor, 495 U.S. at 600); see also 8 U.S.C. § 1229b(b)(1)(C) (requiring
that the defendant “has not been convicted of” an offense involving moral
turpitude (emphasis added)). Another is the unfairness that would result from
using “[s]tatements of ‘non-elemental facts’” against a defendant in a future
proceeding when the defendant had no incentive (and sometimes no
opportunity) to contest them at the time of conviction. 4                  Id. at *8.      The
“threshold inquiry—elements or means?” thus determines whether the
modified categorical approach applies. Id. at *10.
       Mathis recognized that it will sometimes be difficult to determine
whether a state statute sets out alternative means or elements. Id. at *10–11.
That is not the case here. Texas law has definitively answered the “means or
elements” question: the three culpable mental states in section 22.01(a)(1) are
“conceptually equivalent” means of satisfying the intent element, so jury
unanimity as to a particular one is not required. Landrian v. State, 268 S.W.3d
532, 537 (Tex. Crim. App. 2008). Indeed, Mathis recognized this feature of the
Texas assault statute in identifying the Board’s decision in Gomez’s case as
one that turned on the means versus elements distinction. Mathis, 2016 WL
3434400, at *8 n.3 (discussing this very case and recognizing that simple
reckless assault does not qualify as a crime involving moral turpitude).
       With Mathis holding that a statute like Texas’s assault offense that
merely offers alternative means of committing an offense does not allow
application of the modified categorical approach, we are back to the general



       4 The final justification cited by Mathis—Sixth Amendment “trial by jury” concerns
with enhancing a sentence based on facts from a prior conviction that were not required to
be proven to a jury—does not apply directly in the immigration context. Id. at *7. But Mathis
made clear that its clarification of the categorical approach also applies in the immigration
context. Id. at *8 n.3. As discussed below, it cited the Board’s decision in this very case. Id.
And the methodology behind the categorical approach has never differed depending on
whether it was being applied in the criminal or immigration context. Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 185–87 (2007) (applying the same methodology interchangeably).
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                                      No. 14-60808
categorical inquiry about which the parties, the immigration judge, and the
Board agree.      Texas’s assault statute can be committed by mere reckless
conduct and thus does not qualify as a crime involving moral turpitude, which
requires a more culpable mental state. 5
                                           ***
       We thus VACATE the judgment of the Board and REMAND for
reconsideration of whether Gomez meets the other requirements to be
considered for cancellation of removal, and if so, whether he is entitled to that
relief as an exercise of the immigration court’s discretion.




       5 Mathis overrules some of our prior cases to the extent they found the Texas assault
statute to be divisible and subject to the modified categorical approach. See, e.g., Esparza-
Rodriguez, 699 F.3d at 825–26; Chancoy-Tonoc v. Holder, 519 F. App’x 326, 327 (5th Cir.
2013).

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