United States Court of Appeals

Fifth Circuit

FILED

June 18, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 06-60456

____________________

CARLOS A. FUENTES-CRUZ,

Petitioner, 

v.

ALBERTO R. GONZALES, Attorney General of the United States, 

Respondent. 

__________________

ON PETITION FOR REVIEW FROM A FINAL ORDER OF

THE BOARD OF IMMIGRATION APPEALS

__________________

Before HIGGINBOTHAM, DAVIS and WIENER, Circuit Judges.

PER CURIAM:

Carlos A. Fuentes-Cruz (“Fuentes-Cruz”) seeks review of an

order by the Board of Immigration Appeals (“BIA”) denying his

cancellation of removal application. We agree with the

Immigration Judge (“IJ”) and the BIA that Fuentes-Cruz’s

conviction of the Texas offense of Unlawful Transport under TEX.

PENAL CODE ANN. § 20.05 is a crime involving moral turpitude. We

therefore dismiss Fuentes-Cruz’s petition for review.

I. Facts and Procedure
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Fuentes-Cruz, a native and citizen of El Salvador, has

resided in the United States since January 1990 when he entered

without inspection. He is married and has three children, all of

whom are U.S. citizens.

In April 2004 Fuentes-Cruz was arrested for unlawful

transport of individuals under § 20.05, and in August 2004 he

pleaded guilty to the charge. Thereafter, the U.S. Immigration &

Customs Enforcement (“ICE”) agency initiated removal proceedings

against Fuentes-Cruz. At his removal hearing, he conceded that

he is removable for not having been admitted or paroled in the

U.S., but requested cancellation of removal under the Nicaraguan

Adjustment and Central American Relief Act (“NACARA”). The IJ

found that Fuentes-Cruz was eligible for consideration of the

special-rule cancellation of removal, but denied cancellation as

a matter of law because unlawful transport was a crime involving

moral turpitude. The BIA affirmed the ruling of the IJ.

Fuentes-Cruz argues that unlawful transport is not a crime

involving moral turpitude because it lacks the requisite mental

state requirement.

II. Standard of Review

This Court has applied a two-part standard of review to the

BIA’s conclusion that an alien has committed a crime involving
3

moral turpitude. First, we accord substantial deference to the

BIA’s definition of the term “moral turpitude.” Second, we

review de novo whether the elements of the offense fit the BIA’s

definition of a crime involving moral turpitude. Importantly,

this two-step approach provides both consistency concerning the

meaning of moral turpitude and a proper regard for the BIA’s

administrative role-interpretation of federal immigration laws,

not state and federal criminal statutes. Smalley v. Ashcroft,

354 F.3d 332, 335-336 (5th Cir. 2003). If this court finds the

crime the alien was convicted of is a crime involving moral

turpitude, the court does not have jurisdiction to review the BIA

removal order under 8 U.S.C. § 1252(a)(2)(c).

III. Discussion

Under the Immigration and Naturalization Act (“INA”), “[a]ny

alien who is convicted of a crime involving moral turpitude” is

deportable. 8 U.S.C. § 1227(a)(2)(A)(i)(I). The INA does not

define a crime involving moral turpitude, but leaves

interpretation to the BIA and federal courts. Smalley, 354 F.3d

at 335. The BIA in Hamdan v. INS, 98 F.3d 183, 186 (5th Cir.

1996) defined 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 appreciated rules of morality

and the duties owed between persons or to society in
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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. (internal citations

omitted)

The Petitioner asserts that absent a mental state such as

evil intent, fraudulent intent, vicious motive, or corrupt mind,

an offense cannot be classified as a crime involving moral

turpitude. Assuming, arguendo, that such a requirement exists,

we find this requirement is met in § 20.05 of the Texas Penal

Code. Sec. 20.05 states that a person commits an unlawful

transport if for pecuniary benefit he transports an individual in

a manner that:

(1) is designed to conceal the individual from local, state,

or federal law enforcement authorities; and

(2) creates a substantial likelihood that the individual

will suffer serious bodily injury or death. (emphasis added)

To convict a defendant of this offense requires proof that

he designed a method to transport individuals so as to conceal

them from law enforcement authorities. Such proof necessarily

requires evidence of a fraudulent intent. By pleading guilty to

the charge of unlawful transport, Petitioner admitted that he

knowingly, or intentionally, designed the manner he transported
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the individuals to conceal them from law enforcement authorities,

thereby intending to deceive such authorities. 

This Court has repeatedly held that crimes including an

element of intentional deception are crimes involving moral

turpitude. See Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir.

2002) (conspiracy to obtain, possess and use illegal immigration

documents is a crime involving moral turpitude); Pichardo v. INS,

104 F.3d 756, 760 (5th Cir. 1997) (aggravated assault is a crime

involving moral turpitude); Okabe v. INS, 671 F.2d 863, 865 (5th

Cir. 1982) (bribery is a crime involving moral turpitude). The

BIA has similarly stated that “[w]here knowing or intentional

conduct is an element of a morally reprehensible offense, we have

found moral turpitude to be present.” In re Phong Nguyen Tran, 21

I. & N. Dec. 291, 293 (BIA 1996). 

In employing the “categorical approach,” when determining if

a particular law meets the definition of moral turpitude, we

focus “on the inherent nature of the crime, as defined in the

statute..., rather than the circumstances surrounding the

particular transgression.” Amouzadeh, 467 F.3d at 455. As §

20.05 requires proof of intent to conceal from law enforcement

authorities, the offense of unlawful transport is a crime

involving moral turpitude. Because the BIA correctly concluded
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that Petitioner was convicted of a crime involving moral

turpitude, we do not have jurisdiction to review its removal

order. 8 U.S.C. § 1252(a)(2)(c).

The Petition for Review is DISMISSED.