The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit November 15, 2005
Charles R. Fulbruge III
Clerk
No. 04-60385
NOE DE JESUS GONZALEZ-GARCIA,
Petitioner
VERSUS
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent
On Petition for Review of a Final Order of the Board of
Immigration Appeals
Before DAVIS, SMITH and DENNIS, Circuit Judges.
W. Eugene Davis, Circuit Judge:
Noe De Jesus Gonzalez-Garcia (“Gonzalez”), a native and
citizen of Mexico, petitions this court to review a final order of
removal issued by the Board of Immigration Appeals (“BIA”). The
BIA initially affirmed the immigration judge’s (“IJ”) order
removing Gonzalez based on his 1985 and 1986 convictions and
remanded to the IJ to consider his claim for discretionary relief
pursuant to INA § 212(c). On remand the immigration judge ordered
Gonzalez removed based on a 1998 Texas assault conviction. The IJ
concluded Gonzalez was not entitled to discretionary relief because
the conviction was a crime of violence (“COV”) that occurred after
the effective dates of IIRIRA and AEDPA. Because we conclude that
the assault conviction is not a COV, Gonzalez is not removable
pursuant to that offense, and he is entitled to have his claim for
discretionary relief considered by the BIA. Accordingly we
reinstate the BIA’s original order of removal based on the 1985 and
1986 convictions and remand to the BIA for consideration of
Gonzalez’s claim for discretionary relief.
I. Facts and Procedure
Gonzalez is a native and citizen of Mexico. He was admitted
to the United States on December 31, 1985 as a lawful permanent
resident. He was convicted of three crimes after his admission.
In 1986, Gonzalez was convicted of two counts of aiding and
abetting the entry of an illegal alien. In 1989, he was convicted
in Texas state court of theft of an automobile. Finally, on June
12, 1998, Gonzalez was convicted in Texas state court of assault.
On April 28, 1998, the Immigration and Naturalization Service
(INS) issued a Notice to Appear charging Gonzalez as removable
based on the theft conviction, which was identified as a crime of
moral turpitude.1 The INS later filed a supplemental Notice to
Appear charging that Gonzalez was removable pursuant to the alien
1
An alien is removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)
if he or she is convicted of a crime of moral turpitude.
2
smuggling convictions.2 During the hearings the IJ asked Gonzelez
if he had been convicted of any other crimes beside those alleged.
Gonzalez admitted that he had been convicted for “push[ing]” his
wife. After the hearings, the IJ found that the theft conviction
was a crime of moral turpitude, rendering Gonzalez removable
pursuant to 8 U.S.C. § 1227(a)(2)(A)(i). The IJ also found that
Gonzalez was removable under § 1227 (a)(1)(E)(i) for his alien
smuggling convictions.
Gonzalez asserted that he was eligible for waiver of
deportation pursuant to Immigration and Nationality Act (INA) §
212(c) or for cancellation of removal under 8 U.S.C. § 1229b(a)(2).
The IJ denied relief, concluding that the car theft conviction
interrupted the seven years of continuous presence needed for
cancellation of removal.3
The Board of Immigration Appeals remanded the case in light of
INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001), finding that
2
An alien is removable pursuant to 8 U.S.C. § 1227 (a)(1)(E)(i)
if he knowingly has encouraged, induced, assisted, abetted, or
aided any other alien to enter or to try to enter the United States
in violation of law.
3
Section 1229b(d)(1) states: “[A]ny period of continuous
residence or continuous physical presence in the United States
shall be deemed to end (A) ...when the alien is served a notice to
appear under section 1229(a) of this title, or (B) when the alien
has committed an offense referred to in section 1182(a)(2) of this
title that renders the alien inadmissible to the United States
under section 1182(a)(2) of this title or removable from the United
States under section 1227(a)(2) or 1227(a)(4) of this title.” 8
U.S.C. § 1229b(d)(1).
3
Gonzalez was entitled to seek cancellation or removal and waiver
under former INA § 212(c) (8 U.S.C. § 1182(c)(1994)). Upon remand,
the INS filed another supplemental Notice to Appear, alleging that
Gonzalez’s assault conviction was a crime of domestic violence
because it was committed against his wife.4 Gonzalez admitted that
he had a conviction for an assault against a family member and
conceded that he was removable because the offense was a crime of
domestic violence. The INS noted that if Gonzalez was removable
for the assault offense, then St. Cyr would not apply and Gonzalez
would not be entitled to seek discretionary relief because the
conviction occurred in 1998, after the effective date of the
Antiterrorism and Effective Death Penalty Act (AEDPA).
The IJ granted a continuance to allow the parties to brief the
issue of Gonzalez’s eligibility for discretionary relief. After
the continuance, Gonzalez asked to retract his admission that the
offense was a crime of domestic violence, but the IJ stated that
the parties were bound by their pleadings. Gonzalez argued that
the assault conviction was a Class C misdemeanor that required
proof that he committed the offense intentionally. The IJ rejected
Gonzalez’s assertion that a particular mental state was required to
constitute a crime of violence under federal law. Gonzalez also
asserted that the IJ could not go beyond the charging instrument to
determine that Gonzalez’s wife was the victim of the assault. The
4
INA § 237(a)(2)(E)(i) makes any alien deportable for crimes of
domestic violence. 8 U.S.C. § 1227(a)(2)(E)(i).
4
IJ also rejected that argument. The IJ found that Gonzalez was not
eligible for discretionary relief because of the 1998 assault
conviction. Because the IJ found Gonzalez removable for the Texas
assault conviction (a post-IIRIRA offense), the judge did not reach
the issue of whether Gonzalez was entitled to cancellation of
removal or § 212(c) relief for the theft and smuggling convictions.
On review to the BIA, Gonzalez argued that the IJ erred by not
allowing him to amend his pleadings in light of a new decision by
a different IJ that a Texas assault conviction did not constitute
a COV or a crime of domestic violence. He also argued that he was
eligible for cancellation of removal under INA § 240A(a) and that
the IJ abused his discretion by denying Gonzalez’s request for
voluntary departure. The BIA affirmed the IJ’s decision without
opinion. In this appeal, Gonzalez contends the BIA erred in four
respects: (1) in denying his request to amend his pleadings
regarding the domestic violence charge; (2) in concluding that the
Texas assault conviction constitutes a COV under 18 U.S.C. § 16;
(3) in concluding that the assault conviction constitutes a crime
of domestic violence; and (4) in concluding that he is ineligible
to apply for Cancellation of Removal under INA § 240(A)(a), 8
U.S.C. 1229b(a) or § 212(c). We address Gonzalez’s claims below,
however because we agree with Petitioner that the Texas assault
conviction is not a COV, we do not reach his first and third
issues.
5
II. Standard of Review
This court generally only reviews decisions of the BIA, except
it may review an IJ’s decision when the BIA affirms the IJ’s
decision without opinion or additional explanation. See Moin v.
Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003). This court must
affirm the decision if there is no error of law and if reasonable,
substantial, and probative evidence on record, considered as a
whole, supports the Board’s factual findings. Id.
III. Crime of Violence
Gonzalez contends that his Texas assault conviction does not
constitute a crime of violence as defined by 18 U.S.C. § 16. He
maintains that the assault offense for which he was convicted did
not have as an element the intentional use of physical force.
Because the offense could be committed without the use of physical
force, we agree that this offense does not qualify as a COV.
Section 1227 (a)(2)(E)(i) of Title 8 provides that “[a]ny
alien who at any time after admission is convicted of a crime of
domestic violence . . . is deportable.” For purposes of that
section, “the term ‘crime of domestic violence’ means any crime of
violence (as defined in section 16 of Title 18) against a person
committed by a current or former spouse of the person....” 8
U.S.C. § 1227(a)(2)(E)(i). Thus, whether Gonzalez’s assault
conviction was a “crime of domestic violence” depends on (1)
whether his assault conviction is a “crime of violence as defined
6
by 18 U.S.C. § 16, and (2) whether his victim was within the class
of persons set forth in § 1227(a)(2)(E)(i).5
Section 16 defines crime of violence as “an offense that has
as an element the use, attempted use, or threatened use of physical
force against the person or property of another,” or a felony
offense that involves a substantial risk that physical force will
be used against the person or property of another. 8 U.S.C. § 16(a)
& (b).6 This court uses a categorical approach to determine
whether an offense is a COV. United States v. Charles, 301 F.3d
309, 313-14 (5th Cir. 2002). In other words, it reviews whether a
defined offense is, in the abstract, a COV without looking to the
underlying facts of the conviction. United States v. Chapa-Garza,
243 F.3d 921, 924 (5th Cir. 2001).
Under Texas law, a person commits assault 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
5
Because we find that the Texas assault conviction is not a COV
as defined by 18 U.S.C. § 16, we need not address whether the
victim was in the class of persons set forth in § 1227(a)(2)(E)(i).
6
The Texas assault offense which Gonzalez was charged is a
misdemeanor offense. Thus, it clearly does not fall under 8 U.S.C.
16(b) which requires a felony conviction.
7
believe that the other will regard the contact as
offensive or provocative.
TEX. PENAL CODE ANN. 22.01(a).7
The charging instrument alleged that Gonzalez “did then and
there intentionally and knowingly cause bodily injury to CLAUDIA
GONZALEZ, hereinafter called the Complainant, by STRIKING THE
COMPLAINANT WITH HIS HAND.” The language of the charging
instrument tracks § 22.01(a)(1), but the judgement of conviction
indicates that the charge was “[r]educed to a Class C assault.”
Therefore, Gonzalez pleaded guilty to either subsection (2) or (3)
of § 22.01(a).
If a statute provides alternative means of committing an
offense, this court may look to the charging papers to determine
which alternative applies to a particular case. See United States
v. Calderon-Pena, 383 F.3d 254, 258 (5th Cir. 2004), cert. denied,
125 S.Ct. 932 (2005). Because Gonzalez pleaded guilty to a lesser
offense than the one charged, the charging instrument is of little
assistance. However, because the bill of information alleged that
Gonzalez actually caused bodily injury to the victim, rather than
threatening her, we must consider that Gonzalez was convicted of
violating § 22.01(a)(3). To convict under § 22.01(a)(3), the state
need only prove that the perpetrator intentionally or knowingly
7
An offense under § 22.01(a)(1) is a Class A misdemeanor, while
offenses under § 22.01(a)(2) and § 22.01(a)(3) are Class C
misdemeanors.
8
caused “offensive or provocative” physical contact with another.
This court has found that “force,” as used in the statutory
definition of a COV is “synonymous with destructive or violent
force.” United States v. Rodriguez-Gunzman, 56 F.3d 18, 20 n. 8
(5th Cir. 1995). Recently we have stated that “while a ‘harmful’
touching likely involves as an element the use, attempted use, or
threatened use of destructive or violent force against the person
of another necessary to quality for a crime of violence sentence
enhancement...an offensive touching may not involve such an
element.” United States v. Sanchez-Torres, 136 Fed.Appx. 644 (5th
Cir. 2005)(emphasis added). We find this reasoning persuasive and
conclude that “offensive or provocative contact” does not
necessarily involve the use of physical force.8 Therefore,
subsection (a)(3) of the Texas assault statute does not constitute
a COV and Gonzalez is not removable for that offense.
IV. Cancellation of Removal
For the reasons state above, Gonzalez is not removable for
committing a crime of domestic violence, and we must address
whether he is entitled to present his claim for 212(c) relief or
8
Three other Circuits have followed similar reasoning and have
reached the conclusion that offensive contact does not involve “use
of force.” See United States v. Arnold, 58 F.3d 1117, 1122 n. 4
(6th Cir. 1995); Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir.
2003); Singh v. Ashcroft, 386 F.3d 1228, 1234 (9th Cir. 2004). Two
Circuits, on the other hand, have found that offensive physical
contact does involve the “use of force.” See United States v.
Nason, 269 F.3d. 10, 20 (1st Cir. 2001); United States v. Smith,
171 F.3d 617, 621 n.2 (8th Cir. 1999).
9
cancellation of removability. Prior to 1996, INA § 212(c)
permitted the Attorney General discretion to grant a suspension of
deportation to an alien if he maintained a continuous physical
presence in the United States for seven years or more. Section
212(c) was eliminated by two statutes adopted in 1996--the AEDPA
and the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA). Section 212(c), suspension from deportation, was
replaced with a narrower form of relief, “cancellation of removal.”
8 U.S.C. § 1229b. Unlike § 212(c), § 1229b no longer allowed
aliens who committed crimes of moral turpitude to receive a
cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(C).
Furthermore, after the effective date of IIRIRA, April 1,
1997, an alien’s continuous physical presence ended if the alien
committed a crime of moral turpitude or was served with a notice to
appear. 8 U.S.C. 1229b(d)(1). This is commonly referred to as the
stop-time rule. The issue in this case therefore is whether the
stop-time rule applies and whether Gonzalez’s 1989 theft
conviction, a crime of moral turpitude, ended the running of his
continuous physical presence in the United States. Gonzalez
asserts that application of IIRIRA to an offense committed before
IIRIRA’s enactment has an improper retroactive effect. We agree.
In Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483
(1994), the Supreme Court discussed the principle that laws should
not be given retroactive effect. Landgraf established a two-step
analysis for determining whether a statute is given retroactive
10
effect. First, the court “is to determine whether Congress has
expressly prescribed the statute’s proper reach.” Id. at 280.
Second, if “the statute contains no such express command, the court
must determine whether the new statute would have retroactive
effect.”9 Id.
In United States v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271
(2001), the Supreme Court applied Landgraf’s analysis to changes in
the immigration laws made by IIRIRA. St. Cyr involved an alien who
pleaded guilty to a criminal charge that made him deportable. St.
Cyr would have been eligible for a waiver of deportation under the
immigration law in effect at the time he was convicted, but his
removal proceedings were commenced after the effective dates of
AEDPA and IIRIRA.
In St. Cyr, the Supreme Court held that “[a] statute may not
be applied retroactively...absent a clear indication from Congress
that it intended such a result.” The Supreme Court specifically
considered whether depriving removable aliens of consideration for
§ 212(c) relief produced an impermissible retroactive effect for
aliens who were convicted pursuant to a plea agreement at a time
when their plea would not have rendered them ineligible for §
9
The court determines whether there is a retroactive effect by
“[a]sking whether the new provision attaches new legal consequences
to events completed before its enactment,” Landgraft, 511 U.S. at
269-70, and by examining “whether [the statute] would impair rights
a party possessed when he acted, increase a party’s liability for
past conduct, or impose new duties with respect to transactions
already completed.” Id. at 280.
11
212(c) relief. Id. at 320. The Court found that because St. Cyr
and “other aliens like him, almost certainly relied upon that
likelihood [of receiving § 212(c) relief] in deciding whether to
forgo their right to a trial, the elimination of any possibility of
the § 212(c) relief by IIRIRA has an obvious and severe retroactive
effect.” Id. at 325. The Court held that § 212(c) relief remained
available to aliens whose “convictions were obtained through plea
agreements, and who, notwithstanding those convictions, would have
been eligible for § 212(c) relief at the time of their plea under
the law then in effect.” Id. at 326. The Court also stated that
the “elimination of any possibility of § 212(c) relief for people
who entered into plea agreements with the expectation that they
would be eligible for such relief clearly ‘attaches a new
disability, in respect to transactions or considerations already
past.’” Id. at 321 (quoting Landgraft, 511 U.S. at 269). St. Cyr’s
holding applies with equal force to Gonzalez. The inability of
Gonzalez to receive 212(c) relief attaches a new disability for his
pre-IIRIRA convictions.
The Government argues that United States v. Gonzales-Torres,
213 F.3d 899 (5th Cir. 2000), applies to this case. In Gonzalez-
Torres, this court held that “the application of the stop-time
provision to deportation proceedings pending at the time of the
statute’s enactment does not violate aliens’ due process rights.”
Id. at 903. Unlike Gonzalez-Garcia’s case, however, Gonzalez-
12
Torres involved the notice to appear prong of IIRIRA’s stop-time
provision, rather than the commission of a crime of moral turpitude
prong. In Gonzalez-Torres, we relied on INA § 309(c)(5), a special
“Transitional Rule with Regard to Suspension of Deportation,” which
provides that the new stop-time rule “shall apply to notices to
appear issued before, on, or after the date of the enactment of
this Act [Sept. 30 1996].” Pub.L. No. 104-208, 110 Stat. 3009-546,
3009-627 (emphasis added); see also, Gonzalez-Torres, 213 F.3d at
902-903. Because Congress did not enact a similar transitional
rule for the offenses referred to in section 1182(a)(2), crimes of
moral turpitude, the reasoning in Gonzalez-Torres is inapplicable.
Prior to the clock-stopping provision in IIRIRA, the seven
years of continuous lawful residence required for a 212(c) waiver
did not end until a deportation order became administratively
final. Therefore, Gonzalez would have been entitled to 212(c)
discretionary waiver of removal because the deportation proceedings
were not final until more than seven years after he satisfied the
continuous physical residence requirement. Because the clock-
stopping provision attaches new legal consequences to actions
completed before its enactment and because Congress has not
expressly made it retroactive, the statute is impermissibly
retroactive and Gonzalez is entitled to seek 212(c) relief.
V. Conclusion
Because we find that the petitioner’s Texas assault conviction
13
is not a crime of violence, he is not removable pursuant to INA §
237(a)(2)(E)(i), and he is entitled to apply for discretionary
waiver pursuant to INA § 212(c), 8 U.S.C. 1182(c). Gonzalez is
removable based on the 1985 and 1986 convictions and we reinstate
the BIA’s original order of removal and remand this case to the BIA
for consideration of Gonzalez’s claim for discretionary relief and
further proceedings consistent with this opinion.
14