*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-60655

Summary Calendar

_______________________

OTONIEL MEJIA,

Petitioner,

versus,

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

_________________________________________________________________

Petition for Review of an Order of 

The Board of Immigration Appeals

(A91 473 614)

_________________________________________________________________

July 9, 1997

Before JONES, DeMOSS, AND PARKER, Circuit Judges.

PER CURIAM:*

Petitioner Otoniel Mejia appeals decision of the Board of

Immigration Appeals (“BIA” or the “Board”) in which the Board

denied Mejia’s request for relief. For the following reasons, we

affirm the decision of the BIA.
2

BACKGROUND

Petitioner Otoniel Mejia, a citizen of El Salvador,

entered the United States without inspection prior to 1982. He

later applied for legalization under the amnesty provisions of the

Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100

Stat. 3359. He was granted temporary resident status, the first

step in achieving legalization. See 8 U.S.C. § 1255a(a). On

January 28, 1994, Mejia pleaded guilty in Dallas County, Texas to

aggravated assault on a peace officer for striking a police officer

in the nose thereby giving the officer a bloody nose. As a result

of this felony conviction, his temporary resident status was

terminated, and the Immigration and Naturalization Service (the

“INS”) placed him in deportation proceedings. He was charged with

being subject to deportation because of his entry into the United

States without inspection in violation of 8 U.S.C. § 1251(a)(1)(B).

Mejia petitioned for suspension of deportation,

withholding of deportation, and political asylum. The INS

contended that Mejia was ineligible for suspension of deportation

because of his conviction for aggravated assault on a peace

officer, a crime involving moral turpitude; it also contended that

he was ineligible for political asylum and withholding of

deportation because the aggravated assault was a serious crime

constituting a danger to the community. The Immigration Judge

(“IJ”) agreed with the INS and ruled that Mejia was ineligible for
3

suspension of deportation and voluntary departure because his

conviction was a crime of moral turpitude; the IJ also ruled that

he was ineligible for political asylum and withholding of

deportation because his felony conviction was a crime of violence

and he constituted a danger to the community. He was ordered

deported.

Mejia appealed to the BIA which agreed with the ruling of

the IJ and denied his appeal. He now petitions this court for

review of the BIA decision.

Before this court, Mejia complains that the BIA erred in

concluding that he was not entitled to voluntary departure and

suspension of deportation because Mejia’s conviction for aggravated

assault on a peace officer was not a crime involving moral

turpitude. He further complains that the BIA erred in concluding

that he was not entitled to political asylum and withholding of

deportation because his conviction for aggravated assault on a

peace officer was not a very serious crime.

DISCUSSION

BIA’s Ruling Regarding Suspension of Deportation

An alien seeking suspension of deportation must prove

physical presence in the United States for a period of not less

than seven years and “that during all of such period he was and is

a person of good moral character.” See 8 U.S.C. § 1254(a)(1). An

alien bears the burden of demonstrating eligibility for suspension
4

of deportation, and this court will uphold the BIA’s finding that

an alien lacked good moral character for purposes of suspension of

deportation if the finding is supported by substantial evidence.

See Hernandez-Cordero v. INS, 819 F.2d 558, 560 (5th Cir. 1987)(en

banc). “The substantial evidence standard requires only that the

Board’s conclusion be based upon the evidence presented and be

substantially reasonable.” Rojas v. INS, 937 F.2d 186, 189 (5th

Cir. 1991). 

The BIA found that Mejia was deportable because his crime

of aggravated assault upon a peace officer was a crime involving

moral turpitude. See 8 U.S.C. § 1101(h)(3) (providing that an

alien convicted of a crime involving moral turpitude cannot

establish good moral character). Mejia complains that the BIA

erred in reaching this conclusion because it relied upon Matter of

Danesh, 19 I&N Dec. 699 (BIA 1988), in which the BIA held that a

conviction in Texas for aggravated assault against a peace officer

was a crime involving moral turpitude. Mejia argues that his case

is distinguishable because the statute upon which the BIA relied in

Danesh has been changed and was not the same statute to which Mejia

pleaded guilty. Specifically, the statute to which Mejia pleaded

guilty does not necessarily require a bodily harm element. We are

unpersuaded by Mejia’s argument.

“[A]n aggravated assault against a peace officer, which

results in bodily harm to the victim and which involves knowledge
2 Because Mejia pleaded guilty to an offense which embodied

physical harm to the officer, Hamdan v. INS, 98 F.3d 183 (5th Cir.

1996), is distinguishable. In that case, this court held that an

indictment for “simple kidnaping” did not necessarily reflect a

crime of moral turpitude, because the facts stated in the

indictment did not refute a familial relationship or indicate a

ransom demand or the use of force. 98 F.3d at 189. Here, the

actual commission of bodily injury was admitted.

5

by the offender that his force is directed to an officer who is

performing an official duty, constitutes a crime that involves

moral turpitude.” Id. at 673. Mejia pleaded guilty to “knowingly

and intentionally caus[ing] bodily injury to Albert Pagan, . . . a

peace officer in the lawful discharge of official duty, by striking

[Officer Pagan] with his hand, when [Mejia] knew and had been

informed that [Officer Pagan] was a peace officer.” R. 188.2 It

is clear from the information to which Mejia pleaded guilty that he

actually caused bodily harm to his victim. Moreover, Mejia struck

Officer Pagan when, after Officer Pagan and another police officer

observed Mejia looking into and attempting to gain entry into

several parked vehicles and apartment windows, the officers

approached him. R. 189-90. He, “without warning and immediately,”

struck Officer Pagan, drawing blood. Id. We, therefore, find that

there was substantial evidence to support the BIA’s decision and

that its decision that Mejia’s conviction constituted a crime

involving moral turpitude was based upon the evidence presented and

was substantially reasonable. 
6

BIA’s Ruling Regarding Political Asylum

and Withholding of Deportation

Mejia next complains that the BIA erred in determining

that his offense of aggravated assault of a peace officer was a

particularly serious crime. An alien cannot qualify for

withholding of deportation if it is determined that, after

conviction for a particularly serious crime, he constitutes a

danger to the community. See 8 U.S.C. § 1253(h)(2). Likewise, an

alien’s asylum application is subject to mandatory denial if the

alien has been convicted of a particularly serious crime. See 8

C.F.R. § 208.14(d)(1). To the extent this issue involves a

question of law, we review the decision of the BIA de novo. See

Silwany-Rodriguez v. INS, 975 F.2d 1157, 1160 (5th Cir. 1992).

Questions of fact are reviewed to determine whether substantial

evidence supports the BIA’s findings. Id. 

In determining whether a conviction is for a particularly

serious crime, the analysis involves such factors as the nature of

the conviction, the circumstances and underlying facts of the

conviction, the type of sentence imposed, and whether the type and

circumstances of the crime indicate that an alien will be a danger

to the community. See Matter of B-, 20 I&N Dec. 427 (BIA 1991).

Once it is found that an alien has been convicted of a particularly

serious crime, it necessarily follows that the alien is a danger to

the community of the United States. See id. Crimes against persons
7

are more likely to be categorized as particularly serious crimes.

See Matter of Frentescu, 18 I&N Dec. 244, 247 (BIA 1982). 

As discussed supra, Mejia pleaded guilty to striking a

police officer after Mejia “knew and had been informed that

[Officer Pagan] was a peace officer,” which was a crime against a

person that constitutes a flagrant disregard for authority. There

was substantial evidence to support the ruling of the BIA.

CONCLUSION

For the foregoing reasons, the decision of the BIA is

AFFIRMED.