Rodriguez-Castro v. Gonzales

United States Court of Appeals

Fifth Circuit

F I L E D

UNITED STATES COURT OF APPEALS

For the Fifth Circuit October 3, 2005

Charles R. Fulbruge III

No. 04-60003 Clerk

SEFERINA RODRIGUEZ-CASTRO

Petitioner

v.

ALBERTO R. GONZALES, UNITED STATES ATTORNEY GENERAL

Respondent

Petition For Review of an Order

of the Board of Immigration Appeals

Before DAVIS, STEWART, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

The question presented is whether attempted misdemeanor

child abandonment, with intent to return to the child, under

section 22.041(b) of the Texas Penal Code is a crime involving

moral turpitude (CIMT) under 8 U.S.C. § 1182(a)(2)(A)(i)(I). We

conclude that it is not. As interpreted by the Texas courts, that

crime is not an “abandonment” in the ordinary sense of the word,

but is, in essence, leaving a child under the age of 15 years

temporarily without adult supervision under circumstances that a

reasonable person would perceive expose the child to an

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unreasonable risk of harm. Applying the BIA’s definition of a

CIMT to that category of crime as defined by Texas law, we

conclude that the offense does not amount to a CIMT. We therefore

grant Ms. Rodriguez-Castro’s petition for review, vacate the

decision of the BIA, and remand the case to the BIA for further

proceedings.

BACKGROUND AND PROCEDURAL HISTORY

Ms. Rodriguez-Castro is a native and citizen of Mexico who

entered the United States some time between 1986 and 1990 without

inspection or parole. On September 9, 1999, she was indicted in

Texas state court for child abandonment with intent to return in

violation of Texas Penal Code section 22.041, subsections (b) and

(c). She ultimately pleaded guilty to the lesser included charge

of attempted misdemeanor child abandonment with intent to return,

in violation of Texas Penal Code section 22.041(b). On July 25,

2001, the state court accepted her guilty plea. Ms. Rodriguez-

Castro was sentenced to pay a fine and serve 364 days in jail,

with imprisonment suspended subject to probation and community

service.

On September 24, 1999, the INS charged Ms. Rodriguez-Castro

under 8 U.S.C. § 1182(a)(6)(A)(1), i.e., as an inadmissable alien

ineligible for admission because she was present in the U.S.

“without being properly admitted or paroled” or because she

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arrived in the United States at “[a] time or place other than as

designated by the Attorney General as admissible.” Under 8 U.S.C.

§ 1227(a)(1)(A), such inadmissible aliens are deportable. Ms.

Rodriguez-Castro conceded her removability and sought relief by

filing an application for cancellation of removal.

Under 8 U.S.C. § 1229b(b)(1), a nonpermanent alien may be

granted cancellation by the Attorney General if: 1) she has been

present continuously in the U.S. for at least 10 years; 2) she

has been “a person of good moral character during [that]

period[,]” 8 U.S.C. § 1229b(b)(1)(B); 3) she has not been

convicted of certain categories of crimes - including crimes

meeting the requirements of 8 U.S.C. § 1227(a)(2), crimes of

moral turpitude; and 4) removal “would result in exceptional and

extremely unusual hardship to the alien's... child, who is a

citizen of the U.S.” 8 U.S.C. § 1229b(b)(1)(D).

The immigration judge found Ms. Rodriguez-Castro’s

conviction for attempted misdemeanor child abandonment qualified

as a CIMT. Thus, Ms. Rodriguez-Castro was not eligible for

cancellation of removal: "[r]espondant is barred as an alien

convicted of an offense under 8 U.S.C. § 1227(a)(2) [CIMTs] and

is unable [because of that conviction] to show good moral

character." Immigration Judge’s Opinion at 6. As a result, a

final order was entered, sustaining the charge under 8 U.S.C. §

1182, denying the application for cancellation of removal on the

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basis of statutory ineligibility, and ordering Ms.

Rodriguez-Castro removed from the U.S. Immigration Judge’s

Opinion at 7. On December 13, 2003 the BIA affirmed the

Immigration Judge’s decision without opinion. Ms. Rodriguez-

Castro timely filed a petition for review of the BIA’s decision.

JURISDICTION

On May 11, 2005, the President signed the REAL ID Act of

2005, Pub. L. No. 109-13, 119 Stat. 231, broadening the court's

jurisdiction by adding a section to 8 U.S.C. § 1252.1 The

addition reads:

Judicial Review of Certain Legal Claims: Nothing in

subparagraph (B) or (C), or in any other provision of

this Act (other than this section) which limits or

eliminates judicial review, shall be construed as

precluding review of constitutional claims or questions

of law raised upon a petition for review filed with an

appropriate court of appeals in accordance with this

section. 8 U.S.C. § 1252(a)(2)(D).

Section 106(b) of the REAL ID Act makes the above section

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Before May 2005, the final order in Ms. Rodriguez-Castro’s

case denying her application for cancellation and ordering her

removal would not be subject to review: "no court shall have

jurisdiction to review any final order of removal against an alien

who is removable by reason of having committed a criminal offense

[under certain provisions of the INA, including 8 U.S.C. §

1227(a)(2), which includes CIMTs]." 8 U.S.C. § 1252(a)(2)(C)

(2004). Even then, however, courts retained the ability to review

the underlying jurisdictional facts at issue - for example, whether

a particular state statute created a crime properly classified as

a CIMT. In Ms. Rodriguez-Castro’s case, if her crime was properly

classified as a CIMT, a court would have to dismiss her petition

for lack of jurisdiction; if it was not properly classified, the

court could exercise jurisdiction and vacate the order of removal.

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applicable retroactively. Pub. L. No. 109-13, 119 Stat. 231.

The REAL ID Act thus removes jurisdictional bars to direct

review of questions of law in final removal, deportation, and

exclusion orders. See Papageorgiou v. Gonzalez, 413 F.3d 356, 358

(3d Cir. 2005); accord Fernando-Ruiz v. Gonzalez, 410 F.3d 585,

587 (9th Cir. 2005); Gattem v. Gonzalez, 412 F.3d 758, 762 (7th

Cir. 2005); Lopez v. Gonzales, No. 04-2397, 2005 WL 1869044 at *1

(8th Cir. Aug. 9, 2005). In Ms. Rodriguez-Castro's case, the

question is entirely a question of law - whether the BIA properly

classified the Texas statute as a CIMT. Because a question of law

is at issue and because the statute explicitly applies

retroactively, we have jurisdiction over Ms. Rodriguez-Castro's

case.

STANDARD OF REVIEW

The INA “'does not define the term "moral turpitude" and

legislative history does not reveal congressional intent'

regarding which crimes are turpitudinous." Smalley v. Ashcroft,

354 F.3d 332, 335 (5th Cir. 2003) (quoting Pichardo v. I.N.S.,

104 F.3d 756, 759 (5th Cir. 1997)). Instead, Congress left the

interpretation of this provision to the BIA and interpretation of

its application to state and federal laws to the federal courts.

Okoro v. I.N.S., 125 F.3d 920, 926 (5th Cir. 1997).

The immigration regulations provide that a CIMT is an

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offense that is both 1) a crime in the jurisdiction of

occurrence, and 2) a crime of turpitude per the “moral standards

generally prevailing in the United States.” 22 C.F.R. § 40.21

(2005). We have concluded that the BIA, through its

administrative decisions, has interpreted and defined “crime

involving moral turpitude” as follows:

Moral turpitude refers generally to conduct that shocks

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. Moral turpitude has been defined as

an act which is per se morally reprehensible and

intrinsically wrong, or malum in se, so it is the

nature of the act itself and not the statutory

prohibition of it which renders a crime one of moral

turpitude. Among the tests to determine if a crime

involves moral turpitude is whether the act is

accompanied by a vicious motive or a corrupt mind.

Hamdan v. I.N.S., 98 F.3d 183, 186 (5th Cir. 1996)(quoting the

BIA's decision in that case) (internal citations omitted); see

also Omagah v. Ashcroft, 288 F.3d 254, 259-60 (5th Cir. 2002)

(quoting Hamdan language with approval). Consequently, we give

Chevron deference to the BIA’s interpretation of the INA when

appropriate, but we review de novo the BIA’s interpretation and

evaluation of state law in deciding whether a particular state

law is a CIMT. See Omagah, 288 F.3d at 258 (5th Cir. 2002);

accord, Okoro v. I.N.S., 125 F.3d 920, 926 (5th Cir. 1997);

Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004) (“in

determining what the elements are of a particular criminal

statute deemed to implicate moral turpitude, we do not defer to

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the BIA.”); Michel v. I.N.S., 206 F.3d 253, 262 (2d Cir. 2000)

(stating that when "the BIA is interpreting state or federal

criminal laws, we must review its decision de novo") (citing

Hamdan, 98 F.3d 183, 185 (5th Cir. 1996)).

In our de novo interpretation and evaluation of a state

law, we look to the statutory crime definition as interpreted by

the state’s courts, without regard to the particular

circumstances surrounding the specific offender’s violation.

Okabe v. I.N.S., 671 F.2d 863, 865 (5th Cir. 1982)(“Whether a

crime involves moral turpitude depends upon the inherent nature

of the crime, as defined in the statute concerned, rather than

the circumstances surrounding the particular transgression.”);

accord, Padilla v. Gonzalez, 397 F.3d 1016, 1019 (7th Cir. 2005);

DeLeon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002);

Nguyen v. Reno, 211 F.3d 692, 695 (1st Cir. 2000)). When applying

the categorical approach, “the statute must be read at the

minimum criminal conduct necessary to sustain a conviction under

the statute.” Hamdan, 98 F.3d at 189 (citing U.S. ex rel. Guarino

v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939)); accord, Partyka v.

Attorney General of the U.S., No. 04-2804, 2005 WL 1906903 at *3

(3d Cir. Aug. 11, 2005); Matter of Marchena, 12 I. & N. Dec. 355,

357 (BIA 1967). Generally, a statute that encompasses both acts

that do and do not involve moral turpitude cannot be the basis of

removal determination under the categorical approach. Hamdan, 98

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F.3d at 187 (citing Matter of Short, 20 I. & N. Dec. 136, 138

(BIA 1989)); accord, Smalley v. Ashcroft, 354 F.3d 332, 336 (5th

Cir. 2003); Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir.

2002); Pichardo v. I.N.S., 104 F.3d 756, n.6 (5th Cir. 1997);

Michel v. I.N.S., 206 F.3d 253, 263 (2d Cir. 2000); Partyka v.

Attorney General of the U.S., No. 04-2804, 2005 WL 1906903 at *3

(3d Cir. Aug. 11, 2005); .

DISCUSSION

Section 22.041 of the Texas Penal Code provides:

(a) In this section, "abandon" means to leave a child

in any place without providing reasonable and

necessary care for the child, under circumstances

under which no reasonable, similarly situated adult

would leave a child of that age and ability.

(b) A person commits an offense if, having custody,

care, or control of a child younger than 15 years, he

intentionally abandons the child in any place under

circumstances that expose the child to an unreasonable

risk of harm.

(c) A person commits an offense if he intentionally,

knowingly, recklessly, or with criminal negligence, by

act or omission, engages in conduct that places a

child younger than 15 years in imminent danger of

death, bodily injury, or physical or mental

impairment.

(d) Except as provided by Subsection (e), an offense

under Subsection (b) is:

(1) a state jail felony if the actor

abandoned the child with intent to return

for the child; or

(2) a felony of the third degree if the

actor abandoned the child without intent to

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return for the child.

(e) An offense under Subsection (b) is a felony of the

second degree if the actor abandons the child under

circumstances that a reasonable person would believe

would place the child in imminent danger of death,

bodily injury, or physical or mental impairment.

(f) An offense under Subsection (c) is a state jail

felony.

(g) It is a defense to prosecution under Subsection

(c) that the act or omission enables the child to

practice for or participate in an organized athletic

event and that appropriate safety equipment and

procedures are employed in the event.

(h) it is an exception to the application of this

section that the actor voluntarily delivered the child

to a designated emergency infant care provider under

Section 262.302, Family Code.

The offense of attempted abandonment of a child with the intent

to return is a misdemeanor. TEX. PENAL CODE § 15.01 (Vernon 2005).

The statute defines “abandon” in negligence language while

punishing an offender who “intentionally abandons” a child. The

Texas courts have solved this legislative enigma by reading

“intentionally” to refer only to the offender’s act of leaving

the child unattended by another caretaker. Thus, conviction does

not require proof that the offender knew that his act of

abandonment exposed the child to unreasonable risk of harm, but

requires only that the circumstances in which the child was left

would have been recognized by a reasonable similarly situated

adult to present an unreasonable risk of harm to the child.

Consequently, proof of the basic crime of child abandonment

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requires the state to establish that the offender knew he was

leaving the child in a place without a reasonably adequate

caretaker and that, regardless of the offender’s actual

knowledge, the circumstances under which the child was left

exposed the child to an unreasonable risk of harm. See Schultz

v. State, 923 S.W.2d 1, 1-2 (Tex. Cr. App. 1996) (“the culpable

mental state under Sec. 22.041(b) is 'intentional' and [] the

mental state attaches to conduct rather than to circumstances

surrounding conduct."); see also Herbst v. State, 941 S.W.2d

371, 373 (Tex.App.-Beaumont Mar 12, 1997)(a court must “look at

the circumstances...through the eyes of a 'reasonable, similarly

situated adult' and through the eyes of a 'reasonable

person'.”); J. LEE BALDWIN, et al., l19 TEX.JUR.3D CRIMINAL LAW § 472

, n.76 (2005)("A conviction of the offense of abandonment of a

child does not require proof that the defendant was reckless

with regard to the circumstances surrounding the abandonment,

but rather, only proof that the defendant intentionally

abandoned the child. Thus abandoning a child may be a criminal

offense, even if the person leaving the child is unaware of the

risk in doing so."). In contrast, the offense of leaving a child

in a vehicle, TEX. PENAL CODE section 22.10 (Vernon 2005),

“explicitly requires” knowing or intentional leaving as well as

knowledge of the circumstances - that the child is “under seven

years old not attended by a person 14 years or older.” BALDWIN,

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supra, § 474 .

Under § 22.041, the level of culpability and punishment for

child abandonment by a custodian varies depending on whether the

offender intended to return to the child and on the degree of

risk to which the child is exposed. See TEX. PENAL CODE §

22.041(d)(1), (d)(2). The offense constitutes only a jail felony

if the offender left the child with the intent to return for the

child. Id. § 22.041(d)(1). An attempt to commit that jail felony

is punishable only as a misdemeanor. Id. § 15.01. On the other

hand, a violation of the statute by a custodian without an

intent to return for the child is a third degree felony. Id. §

22.041(d)(2). A violation under circumstances that a reasonable

person would believe expose the child to imminent danger of

death, bodily injury, or physical or mental impairment is a

second degree felony. Id. § 22.041(e).

Before the enactment of section 22.041 in 1985, when a

child was abandoned by a person with custody of the child, that

person could be prosecuted only if the child suffered injury or

death. Schultz v. State, 923 S.W.2d 1, n.4( Tex. Crim. App.

1996). Apparently, in an attempt to curb an increasing incidence

of appalling parental desertions, such as infants left in fields

and trash dumpsters, young children left unattended several

weeks in filthy apartments, and three year olds left in a house

alone with open flame heaters for half the night in winter, the

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scope of the crime of child abandonment was greatly expanded.

Id.(discussing legislative history). Section 22.041 was enacted

to criminalize virtually any act of leaving a child unattended

in a dangerous situation, regardless of whether the child was

harmed, and without the necessity of proving the offender’s

intent, recklessness, or even awareness of the child’s jeopardy.

Consequently, this broad approach to the problem brings within

the ambit of culpability and punishment not only the despicable

and malevolent but also the foolish and negligent.

Ms. Rodriguez’s crime of conviction ranks within the lowest

grade of the offense, as an attempted non-harmful temporary

leaving with the intent to return. TEX. PENAL CODE §§ 15.01,

22.041(b),(d)(1). At the minimum level of culpability within

this category, the offense may be viewed as an act involving

only negligence in temporarily leaving a child, with the intent

to return, in a situation of unreasonable risk, but without harm

to the child. Thus, the crime at issue in the present case

must be presumed to be one of the least in culpability within

that range, such as, for example, a mother’s quick trip next

door to borrow some sugar while carelessly leaving a toddler

alone in a kitchen with a pot boiling, electric sockets

uncovered, and ordinary utensils accessible.

To shed light on whether the crime at issue is a CIMT, we

turn to the BIA’s general definition, and also to other indicia

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of moral turpitude that have been inferred from the BIA’s

numerous decisions. Although none of these amounts to an

indisputable hallmark or conclusive identification of a CIMT,

the absence of any contrary indication by them in the present

case further convinces us that the crime here is not a CIMT.

As a general rule, laws that authorize criminal punishment

without proof that the offender intended or recklessly

disregarded the potential consequences of his act do not define

CIMTs. See generally Michel v. I.N.S. 206 F.3d 253, 265 (2d Cir.

2000)(“[M]oral turpitude...is a question of the offender’s evil

intent or corruption of the mind.”)(quoting In re Serna, 20 I.&

N. Dec. 579, 581-582(BIA 1989)); Id. at 263 (“[Corrupt scienter

is the touchstone of moral turpitude.”). Thus, negligence-based

crimes usually do not amount to CIMTS. See, e.g., Partyka v.

Attorney General of the U.S., No. 04-2804, 2005 WL 1906903 at *4

(3d Cir. Aug. 11, 2005) (“The negligent infliction of bodily

injury lacks this essential culpability requirement [of

consciousness or deliberateness]. By definition, a negligent

assault is unintentional, unwitting, and committed without

contemplation of the risk of injury involved.”); In re Perez-

Contreras, 20 I. & N. Dec. 615 (BIA 1992) (stating, with regard

to a Washington state statute for third degree assault, that

“[s]ince there was no intent [to cause a particular harm], not

any conscious disregard of a substantial and unjustifiable risk,

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we find no moral turpitude inherent in the statute.”).

Similarly, strict liability crimes generally are not CIMTs. Mei

v. Ashcroft, 393 F.3d 737, 740 (7th Cir. 2004)(“[C]rimes deemed

not to involve moral turpitude...are either very minor crimes

that are deliberate or graver crimes committed without a bad

intent, most clearly strict-liability crimes.”)(citing

(Rodriguez-Herrera v. I.N.S., 52 F.3d 238, 241; Goldeshtein v.

I.N.S., infra; State v. Miller, infra); Goldeshtein v. I.N.S., 8

F.3d 645, 648 (9th Cir. 1993) (holding that financial

structuring crimes which contain “no element of scienter” are

not CIMTs); State v. Miller, 836 P.2d 1004, 1005 (Ariz. App.

1992) (stating that the crimes of conducting business and

advertising without a license “do not require any culpable

mental state” and therefore are not CIMTS.); In re L-V-C, 22 I.

& N. Dec. 594, 602 (BIA 1999)(following Goldeshtein). Cf.,

Smalley v. Ashcroft, 354 F.3d 332, 338-9 (5th Cir. 2003)

(Distinguishing structuring crime in Goldeshtein, since it

“requires no intent to defraud the government,” from money-

laundering, which is a CIMT because it involved intent to

defraud and conceal illegal drug proceeds).

In the same vein, BIA decisions in which failure to support

a child has been found to be a CIMT involve willful and

intentional acts that leave a child in destitute circumstances.

See, e.g., In the Matter of R., 4 I. & N. Dec. 192, 194 (BIA

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1950)(holding violation of a Wisconsin statute was a CIMT

because it required both wilfulness and destitution of the

child); In the Matter of S., 2 I. & N. Dec. 553 (BIA 1946)

(finding same with regard to New York statute); In the Matter of

R., 4 I. & N. Dec. at 194 (observing that most CIMT failure to

support statutes require willfulness and destitution). In the

CIMT failure-to-support cases, the defendant was culpable of

more than mere negligence. Rather, the classifications of these

crimes as CIMTS were based essentially on the defendant’s

willfulness and the resulting destitution of the child. Further,

the BIA declined to classify a failure to support violation as a

CIMT where the statute imposed criminal liability despite the

defendant’s “good faith and honest motives.” In the Matter of E,

2 I. & N. Dec. 134, 135 (BIA 1944)) (holding that an Ohio

nonsupport statute was not a CIMT because a parent could violate

it even where he honestly believed he was acting in the child’s

best interests).

Evaluating the category of conduct criminalized by section

22.041(b), measured by the least culpable conduct required for

its commission, in light of the BIA’s general definition of a

CIMT, as well as the BIA and court decisions involving

negligence and strict-liability crimes, we conclude that the

offense at issue here is not a CIMT. The state crime in this

case does not qualify as a CIMT because it does not shock the

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public conscience as being inherently base, vile, or depraved;

it is not per se morally reprehensible and intrinsically wrong,

or malum in se; and it is not accompanied a vicious motive or a

corrupt mind.

CONCLUSION

For these reasons, we GRANT Ms. Rodriguez-Castro’s petition

for review, VACATE the decision of the BIA and REMAND the case to

the BIA for further proceedings not inconsistent with this

opinion.

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