     Case: 13-60446     Document: 00512883994    Page: 1   Date Filed: 12/29/2014




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

                                                                         FILED
                                                                   December 29, 2014
                                  No. 13-60446
                                                                      Lyle W. Cayce
                                                                           Clerk
SALVADOR CISNEROS-GUERRERRO, also known as Salvador Cisneros
Guerrero, also known as Salvador Cisnerosguerro,

                                            Petitioner

v.

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

                                            Respondent


                      Petition for Review of an Order of the
                         Board of Immigration Appeals


Before KING, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Proceeding pro se, Salvador Cisneros-Guerrerro, a native and citizen of
Mexico, petitions for review of a decision of the Board of Immigration Appeals
finding that his prior offense of public lewdness, under Texas Penal Code
§ 21.07, was categorically a crime involving moral turpitude and that he was
therefore ineligible for cancellation of removal under § 240A(b)(1) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1). We GRANT Cisneros-
Guerrerro’s petition.
            FACTUAL AND PROCEDURAL BACKGROUND
      Petitioner Salvador Cisneros-Guerrerro (“Cisneros”) was charged in
2010 with being subject to removal from the United States. Cisneros conceded
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that he was removable for having entered the United States without
inspection, in violation of § 212(a)(6)(A)(i) of the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i). In May 2012, Cisneros appeared before
an Immigration Judge (“IJ”) and requested relief in the form of cancellation of
removal under § 240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1). Cisneros
submitted to the IJ a judgment reflecting that on January 11, 2006, he pleaded
nolo contendere to public lewdness under Texas Penal Code § 21.07, a Class A
misdemeanor offense, 1 and was sentenced to ten days in jail.                     The IJ
determined that Cisneros had failed to meet his burden of showing he was
eligible for relief because he had been convicted of a crime involving moral
turpitude (“CIMT”). The IJ denied Cisneros’s request for a continuance so that
he could produce the charging instrument to show that his public lewdness
conviction did not involve moral turpitude. The IJ explained that because an
offense under Texas Penal Code § 21.07 was categorically a CIMT, it was
unnecessary to examine Cisneros’s record of conviction. The IJ then
pretermitted Cisneros’s application for cancellation of removal.
      Cisneros appealed the IJ’s decision to the Board of Immigration Appeals
(“BIA”), arguing that “public lewdness involves a wide range of behaviors,”
including both turpitudinous and non-turpitudinous conduct. In support of his
position, Cisneros cited the Attorney General’s decision in Matter of Silva-
Trevino, 24 I. & N. Dec. 687 (A.G. 2008), which concluded that the Texas
offense of indecency with a child, Tex. Penal Code Ann. § 21.11(a)(1), was not
categorically a CIMT. The BIA affirmed the IJ’s decision in a brief,
unpublished decision, concluding that the offense of public lewdness
“constitutes a categorical crime involving moral turpitude.” Relying in part on



      1  A Class A misdemeanor offense is punishable by a fine of up to $4,000, a jail term
“not to exceed one year,” or both. Tex. Penal Code Ann. § 12.21.


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its previous decision in Matter of Medina, 26 I. & N. Dec. 79 (BIA 2013), which
addressed California’s indecent exposure statute, the BIA explained that
“[a]fter comparing the statute of conviction to the generic definition of moral
turpitude, we are convinced that the statute bans only actions that involve
moral turpitude.”
                                  DISCUSSION
      We begin by briefly addressing the legal framework applicable to
Cisneros’s claim for relief. Section 240A(b)(1) of the INA, 8 U.S.C. §
1229b(b)(1), provides in relevant part that the “Attorney General may cancel
removal of, and adjust to the status of an alien lawfully admitted for
permanent residence, an alien who is inadmissible or deportable from the
United States,” if certain legal conditions are met. An alien who has been
convicted of a “crime involving moral turpitude,” however, is ineligible for
cancellation of removal if, among other things, under the statute of conviction,
“a sentence of one year or longer may be imposed.” 8 U.S.C. § 1227(a)(2)(A)(i)(I),
(II); see also id. § 1229b(b)(1)(C) (stating, in relevant part, that an alien is only
eligible for cancellation of removal if he “has not been convicted of an offense
under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title”).
      The INA “does not define the term moral turpitude,” and legislative
history provides us with little guidance as to Congress’s intent. Rodriguez-
Castro v. Gonzales, 427 F.3d 316, 319–20 (5th Cir. 2005) (internal quotation
marks and citation omitted). Accordingly, we have concluded that “Congress
left the interpretation of this provision to the BIA and interpretation of its
application to state and federal laws to the federal courts.” Id. at 320. The BIA
has construed “moral turpitude” to refer to 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 Sejas, 24 I. & N. Dec. 236,



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237 (BIA 2007) (internal quotation marks and citation omitted); see also
Garcia-Maldonado v. Gonzales, 491 F.3d 284, 288 (5th Cir. 2007) (“Moral
turpitude refers generally to conduct that shocks the public conscience as being
inherently base, vile, or depraved . . . .”). “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.” Esparza-Rodriguez v. Holder, 699 F.3d 821, 823–24 (5th Cir.
2012).
       In deciding whether a particular state or federal crime is a CIMT, we
perform a two-step test. First, we apply the categorical approach to “assess[]
whether ‘the minimum reading of the statute necessarily reaches only offenses
involving moral turpitude.’” Id. at 825 (quoting Amouzadeh v. Winfrey, 467
F.3d 451, 454–55 (5th Cir. 2006)). 2 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 . . . .” Id.
Under that approach, we examine the record of conviction to determine
whether the alien was convicted under a part of the statute that describes a




       2 The Government argues that we should defer to the categorical analysis set forth by
the Attorney General, which asks “whether there is a ‘realistic probability, not a theoretical
possibility,’ that the State or Federal criminal statute pursuant to which the alien was
convicted would be applied to reach conduct that does not involve moral turpitude.” Matter
of Silva-Trevino, 24 I. & N. Dec. 687, 689–90 (A.G. 2008) (quoting Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007)). However, our circuit has continued to follow Amouzadeh’s
“minimum reading” test in the CIMT categorical analysis even after Silva-Trevino. See
Esparza-Rodriguez, 699 F.3d at 825. We here follow circuit precedent and leave for another
day the question of whether to adopt the “realistic probability” test in the CIMT context.


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crime involving moral turpitude. Id.; Nino v. Holder, 690 F.3d 691, 694 (5th
Cir. 2012). 3
       In his petition for review, Cisneros argues that the IJ and BIA erred in
concluding that he had been convicted of a CIMT under the categorical
approach. According to Cisneros, the IJ and BIA should have applied the
modified categorical approach to determine whether his prior offense was a
CIMT.
       Under Esparza-Rodriguez, we first examine whether Texas’s public
lewdness statute, Tex. Penal Code Ann. § 21.07, reaches conduct that does not
involve “moral turpitude,” within the language of the INA. This is an issue of
first impression. Section 21.07(a) provides that:
       A person commits an offense if he knowingly engages in any of the
       following acts in a public place or, if not in a public place, he is
       reckless about whether another is present who will be offended or
       alarmed by his:
       (1) act of sexual intercourse;
       (2) act of deviate sexual intercourse;
       (3) act of sexual contact; or
       (4) act involving contact between the person’s mouth or genitals
       and the anus or genitals of an animal or fowl.
Tex. Penal Code Ann. § 21.07(a). “Sexual contact” is defined, in relevant part,
as “any touching of the anus, breast, or any part of the genitals of another
person with intent to arouse or gratify the sexual desire of any person.” Id. §
21.01(2).




       3 In addition to the two steps described here, the Attorney General’s decision in Matter
of Silva–Trevino provided for a third step to be used in determining whether a conviction is
for a CIMT. We recently rejected this third step, however, as “inconsistent with the
unambiguous language of the relevant statutory provision.” Silva-Trevino v. Holder, 742
F.3d 197, 198 (5th Cir. 2014).


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      Under its plain language, section 21.07 is divisible into at least one
subsection that proscribes turpitudinous conduct and at least one subsection
that proscribes non-turpitudinous conduct. Engaging in a public act involving
contact between one’s genitals and the genitals of a non-human animal, which
violates subsection (a)(4), is “inherently base, vile, or depraved” and therefore
turpitudinous. See In re Sejas, 24 I. & N. Dec. at 237; In re: Applicant, 2007
WL 5319055, at *5 (AAO Mar. 15, 2007). However, the statute, coupled with
caselaw, proscribes inoffensive and ubiquitous conduct: the consensual
touching of another person’s breast, even if clothed, in public, “with intent to
arouse or gratify the sexual desire of any person.” Tex. Penal Code Ann. §§
21.07(a)(3), 21.01(2); Sanchez v. State, No. 01-91-00817, 1992 WL 173591, at
*2 (Tex. Ct. App. July 23, 1992) (unpublished opinion) (concluding that
“touching the clothing covering [another person’s] breast” in a movie theater
constituted public lewdness under section 21.07, and noting that “[f]lesh to
flesh contact is not necessary to prove sexual contact”); see also Reynolds v.
State, 856 S.W.2d 547, 548 (Tex. Ct. App. 1993) (reviewing Reynolds’s
conviction under section 21.07 for touching another person’s breasts with his
chest, where there was no indication that the act was not consensual, but
reversing and remanding for a new trial on the ground that certain evidence
was improperly admitted); Hines v. State, 906 S.W.2d 518, 522 (Tex. Crim.
App. 1995) (en banc) (“‘It is assumed that the acts enumerated [in Section
21.07(a)(1)–(4)] are consensual type acts.’” (quoting 2 Branch’s Tex. Ann. Penal
Statutes (3d ed. 1974) (alteration in original)).
      Such de minimis touching, even in public, may involve proscribed
misdemeanor conduct, but, we hold, does not “shock[] the public conscience as
being inherently base, vile, or depraved.” See Garcia-Maldonado, 491 F.3d at
288. Our conclusion is supported by the Attorney General’s discussion of the



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Texas statute at issue in Matter of Silva-Trevino. That case considered the
crime of “indecency with a child” under Texas Penal Code § 21.11(a)(1), which
prohibits various forms of sexual contact with a child under 17 years old,
including touching the child’s breast, and requires that the defendant intend
“to arouse or gratify the sexual desire of any person.” Tex. Penal Code Ann. §
21.11(a)(1). The Attorney General concluded that a conviction under section
21.11(a)(1) is not categorically a CIMT because that statute penalizes even a
defendant who reasonably believes that the child is older than 17. See 24 I. &
N. at 707–08. Therefore, under the Attorney General’s view, the intent to
arouse or gratify sexual desire does not alone make conduct turpitudinous.
Unlike the indecency statute at issue in Matter of Silva-Trevino, the Texas
public lewdness statute, under which Cisneros was convicted, requires either
that the conduct occur “in a public place,” or else that the defendant “is reckless
about whether another is present who will be offended or alarmed by his”
conduct. Tex. Penal Code Ann. § 21.07. However, we find that the public nature
of a de minimis touching, proscribed by section 21.07(a)(3), does not convert
that conduct into an act of depravity that violates “accepted rules of morality.”
See In re Sejas, 24 I. & N. Dec. at 237.
      In its decision dismissing Cisneros’s appeal, the BIA cited Matter of
Medina, 26 I. & N. Dec. 79 (BIA 2013), without explaining how that case
supports its conclusion that public lewdness is categorically a CIMT. In Matter
of Medina, the BIA held that the offense of indecent exposure under section
314(1) of the California Penal Code is categorically a CIMT. That section
penalizes one who “willfully and lewdly . . . [e]xposes his person, or the private
parts thereof, in any public place, or in any place where there are present other
persons to be offended or annoyed thereby.” Cal. Penal Code § 314(1). The BIA
held that “lewd intent brings the offense of indecent exposure within the



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definition of a crime involving moral turpitude.” Matter of Medina, 26 I. & N.
Dec. at 83. The BIA cited a case from the California Supreme Court that
defined “lewd” under section 314 as requiring that the actor “‘intended by his
conduct to direct public attention to his genitals for purposes of sexual arousal,
gratification, or affront.’” Id. at 85 (quoting In re Smith, 497 P.2d 807, 810 (Cal.
1972)). The Texas offense of public lewdness, notwithstanding its title, is
significantly different from the California offense of indecent exposure. The
word “lewd” appears nowhere in the body of the statutory section defining the
Texas offense, and the intent to “direct public attention to [one’s] genitals” is
not an element of that offense. See In re Smith, 497 P.2d at 810. The BIA’s
decision in Matter of Medina therefore does not support a conclusion that the
Texas offense of public lewdness is categorically a CIMT.
      Because section 21.07 is divisible into discrete subsections of
turpitudinous acts and non-turpitudinous acts, Cisneros’s offense under that
statute is not categorically a CIMT. The IJ and BIA therefore erred in declining
to review Cisneros’s record of conviction, under the modified categorical
approach, to determine whether Cisneros was convicted under a subsection
that describes a CIMT. See Esparza-Rodriguez, 699 F.3d at 825.


                                 CONCLUSION
      For the foregoing reasons, Cisneros’s petition for review is GRANTED.
We VACATE the BIA’s decision and REMAND for further proceedings
consistent with this opinion.




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