IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60626

JORGE ALBERTO PULIDO-ALATORRE

Petitioner

v.

ERIC H. HOLDER, JR., US ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A70 595 146

Before HIGGINBOTHAM and STEWART, Circuit Judges, and FELDMAN,

*

District Judge.

PER CURIAM:

**

Jorge Alberto Pulido-Alatorre, a native and citizen of Mexico, has

petitioned for review of a final order of the Board of Immigration Appeals (BIA)

denying his motions to reconsider, reopen, and stay the order of removal; the

BIA had dismissed Pulido-Alatorre’s appeal of the Immigration Judge’s order,

which found that Pulido-Alatorre’s convictions were crimes involving moral

United States Court of Appeals

Fifth Circuit

F I L E D

June 11, 2010

Lyle W. Cayce

Clerk

District Judge of the Eastern District of Louisiana, sitting by designation. *

Pursuant to 5 Cir. R. 47.5, the court has determined that this opinion should ** th

not be published and is not precedent except under the limited circumstances set forth in 5

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Cir. R. 47.5.4.

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turpitude and denied him cancellation of removal. The IJ ruled that PulidoAlatorre is subject to removal on the basis of two criminal convictions in Texas,

and that he is ineligible for cancellation of removal. On appeal, the BIA

affirmed. Pulido-Alatorre did not seek judicial review of the BIA’s order, but

instead filed motions to reconsider, reopen, and stay the order of removal. The

BIA denied Pulido-Alatorre’s motions to reconsider, reopen, and stay the order

of removal; that BIA order is the subject of this timely petition for review.

Pulido-Alatorre asserts the following issues on appeal: (1) whether

Pulidos-Alatorre’s 2004 Texas state conviction of a misdemeanor charge of

burglary of a motor vehicle under Tex. Penal Code § 30.04 is a crime involving

moral turpitude (CIMT); (2) whether his 2005 Texas state conviction for evading

arrest with a vehicle under Tex. Penal Code § 38.04 is a CIMT; (3) whether he

is eligible for cancellation of removal; (4) whether he is eligible for a hardship

waiver of removal; and (5) whether he is eligible for a petty crime waiver.

I

A.

The petitioner first seeks review of the BIA’s upholding of the IJ’s

judgment that the petitioner is removable under the INA for committing two

CIMTs, as well as committing such offense within five years of entry. PulidoAlatorre argues on appeal that neither of his Texas state convictions -- for

burglary of a motor vehicle and for evading arrest with a vehicle -- constitute a

CIMT. An alien is deportable if he has been convicted of two or more crimes

involving moral turpitude. 8 U.S.C. § 1227(a)(2)(A)(ii). What constitutes a

CIMT is left up to the BIA and the federal courts. We apply a two-part standard

of review to the BIA’s conclusion that a non-citizen has committed a crime

involving moral turpitude. Smalley v. Ashcroft, 354 F.3d 332, 335 (5 Cir. 2003).

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“First, we accord ‘substantial deference to the BIA’s interpretation of the INA’

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and its definition of the phrase ‘moral turpitude.’ Second, we review de novo

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whether the elements of a state or federal crime fit the BIA’s definition of a

CIMT.” Id. at 335-36 (citations omitted). The BIA’s determination of what

constitutes moral turpitude must be upheld if that determination is reasonable.

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

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To determine whether a particular statute meets the BIA’s

definition, the Court utilizes a categorical approach, which focuses "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 (internal quotation marks and citation omitted). This categorical

approach requires the Court to examine statutory text as interpreted by the

state courts, without regard to the circumstances surrounding the offender’s

violation. Id. In examining the statutory text, the Court evaluates “the

minimum criminal conduct necessary to sustain a conviction under the

statute[;]” an offense will not be considered a CIMT if it could include crimes

“not inherently entailing moral turpitude.” Id. (internal quotation marks and

citations omitted). However, if the statute does not categorically involve moral

The BIA has defined moral turpitude as follows: 1

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.

Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5 Cir. 2006) (internal quotation marks and th

citation omitted).

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turpitude -- if the statute is divisible into discrete subsections of acts, where

some constitute CIMT and some do not -- the Court applies an exception to the

categorical approach: in that situation, the Court looks to the alien’s record of

conviction to determine whether he pleaded guilty to elements that constitute

a CIMT. Id.

Considering the record as a whole, we find that the BIA did not err

in finding that Pulido-Alatorre's 2004 conviction for violating Tex. Penal Code

30.04(a) was a CIMT. Section 30.04 of the Texas Penal Code provides: "A person

commits an offense if, without the effective consent of the owner, he breaks into

or enters a vehicle or any part of the vehicle with intent to commit any felony or

theft." (emphasis added). Applying the categorical approach, the BIA was

reasonable in determining that petitioner’s crime is one involving moral

turpitude; in an analogous context, this Court has determined that burglary of

a car is a "crime of violence." Cf. United States v. Delgado-Enriquez, 188 F.3d

592, 595 (5 Cir. 1999); United States v. Ramos-Garcia, 95 F.3d 369, 371 (5 Cir.

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1996). Moreover, even if we divided the statute such that intent to commit theft

was a component of burglary of a vehicle, the BIA's determination that PulidoAlatorre's conviction was a CIMT was reasonable. Because the record of

conviction shows that Pulido-Alatorre pleaded guilty to the charge of breaking

and entering into a motor vehicle with intent to commit a theft, the BIA did not

err in finding that Texas Penal Code 30.04(a) was a CIMT.

B.

Nor did the BIA err in finding that Pulido-Alatorre's 2005 conviction

of evading arrest with a vehicle, a violation of Tex. Penal Code 38.04(a), was a

CIMT. Section 38.04 of the Texas Criminal Code provides:

(a) A person commits an offense if he intentionally flees

from a person he knows is a peace officer attempting to

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lawfully arrest or detain him.

(b) An offense under this section is a Class B

misdemeanor, except that the offense is:

(1) a state jail felony if

(A) the actor has been previously convicted under this

section; or

(B) the actor uses a vehicle while the actor is in flight

and the actor has not been previously convicted under

this section.

The categorical approach appears inapplicable because the statute as a whole

encompasses some acts that do, and some acts that do not, involve moral

turpitude. Looking to the record of conviction, Pulido-Alatorre pleaded guilty to

"unlawfully intentionally flee[ing] from ... a peace officer ... lawfully attempting

to detain him, and he used a motor vehicle while in flight." Thus, PulidoAlatorre pleaded guilty to that discrete subsection of the statute that

criminalizes intentional flight with a vehicle, which the BIA determined was a

CIMT because "such conduct reflects an awareness and conscious disregard of

a substantial and unjustifiable risk." This Court finds that the BIA's

determination that Pulido-Alatorre's conviction constituted a CIMT was

reasonable. Accordingly, considering the record as a whole, Pulido-Alatorre was

convicted of two CIMTs that were not part of the same scheme; thus, the BIA

properly upheld the IJ's ruling that Pulido-Alataorre is deportable under §

237(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii).

Furthermore, the BIA did not err in affirming that Pulido-Alatorre

is not eligible for cancellation of removal under the "petty offense" exception.

This exception does not apply to him because we have upheld the BIA's

determination that Pulido-Alatorre committed two CIMTs. See INA §

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212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii) ("[inadmissibility for conviction of a

CIMT] shall not apply to an alien who committed only one crime if...").

II

The petitioner next requests that we review whether the BIA erred

in affirming the IJ's finding that the petitioner was not eligible for cancellation

of removal under INA § 240 A(a), 8 U.S.C. § 1229b(a). This requires a

determination as to whether, upon the time of his priority date for adjustment

of status as a legal permanent resident, he is able under the law to impute the

residency of his father as his own in order to meet the seven years residency

requirement required for eligibility for cancellation of removal where the

petitioner was a minor throughout such period of ten years.

The BIA's factual conclusions are reviewed for substantial evidence

and legal conclusions are reviewed de novo. The Court gives deference to the

BIA's interpretations of ambiguous provisions of the INA. Avilez-Granados v.

Gonzales, 481 F.3d 869, 871 (5 Cir. 2007). In interpreting the INA, under the

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Chevron framework, the Court first determines "whether Congress has directly

spoken to the precise question at issue. If the intent of Congress is clear, that

is the end of the matter; for the court, as well as the agency, must give effect to

the unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). On the other hand,

if Congress has left a gap in the statute, "the question for the court is whether

the agency's answer is based on a permissible construction of the statute." Id.

at 843. "Needless to say, plain statutory language is the most instructive and

reliable indicator of Congressional intent." Martinez v. Mukasey, 519 F.3d 532,

541 (5 Cir. 2008)(citing White v. INS, 75 F.3d 213, 215 (5 Cir. 1996)).

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The cancellation of removal for permanent residents provision

provides:

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(a) Cancellation of removal for certain permanent

residents

The Attorney General may cancel removal in the

case of an alien who is inadmissable or

deportable from the United States if the alien--

(1) has been an alien lawfully admitted for

permanent residence for not less than 5

years,

(2) has resided in the United States

continuously for 7 years after having been

admitted in any status, and

(3) has not been convicted of any

aggravated felony.

INA § 240A(a), 8 U.S.C. § 1229b(a). "[A]dmitted" means "the lawful entry of the

alien into the United States after inspection and authorization by an

immigration officer." 8 U.S.C. § 1101(a)(13)(A). If an alien during that sevenyear period commits a CIMT, then the Attorney General can no longer cancel his

removal. The only way Pulido-Alatorre can invoke this cancellation of removal

provision is if it is permissible to impute to him his father's years of lawful

permanent residency. Accordingly, we consider Pulido-Alatorre's argument that

the BIA should have imputed to him his father's years of lawful permanent

residency because he was a minor who resided with his father until his

admission in 2002. A divided panel of the Ninth Circuit has determined that the

statute is ambiguous and that the BIA's interpretation (that the petitioner could

not impute his mother's lawful permanent resident status in order to meet the

requirement for cancellation of removal) was unreasonable and, therefore, not

entitled to deference. See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1016 (9

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Cir. 2005). The BIA has since reaffirmed its position, that imputation is not

permissible, and has thus limited application of Cuevas-Gaspar to only §

240(a)(2) and to only the Ninth Circuit. See In re Escobar, 241 I. & N. Dec. 231,

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235 (BIA 2007). The Third Circuit has disagreed with the Ninth Circuit; the

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Third Circuit, like the Ninth Circuit, first determined that the statute was

ambiguous, but then parted ways with the Ninth Circuit when it upheld the

BIA's interpretation of the INA as reasonable. See Augustin v. Attorney

General, 520 F.3d 264, 268 (3d Cir. 2008).

We decline to follow the Ninth Circuit. As a preliminary matter, we

note that Cuevas-Gaspar is not binding precedent; moreover, the Ninth Circuit

appears impermissibly to have expanded the INA's removal cancellation

provision. Instead, we favor the Third Circuit's reasoning in Augustin. That is,

even if we determined that the statute was ambiguous, which it does not appear

to be and which we need not decide today, we favor the Third Circuit's reasoning

in upholding as a permissible interpretation of the statute the BIA's refusal to

impute the parent's years of residence. As the Third Circuit noted, the BIA's

position is "permissible because it is a straightforward application of the

statutory requirements. [The Third Circuit could not] find the BIA unreasonable

for failing to read into the statute an exception seemingly at odds with the

statute's requirements." Augustin, 520 F.3d at 270.

III

Finally, we consider whether the BIA erred in denying PulidoAlatorre's motion to reopen based on its determination that he had failed to show

that he would be prima facie eligible for adjustment of status. Pulido-Alatorre,

as the moving party, bears a heavy burden to reopen a removal case. See

Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549-50 (5 Cir. 2006). The BIA has

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The Ninth Circuit recently overruled In re Escobar. Escobar v. Holder, 567 2

F.3d 466 (9 Cir. 2009)(holding that rationale and holding of Cuevas-Gaspar equally applied th

to the statute's additional five-year permanent residence requirement). In re Escobar remains

persuasive authority as an expression of the BIA's position that applies outside the Ninth

Circuit.

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broad discretion over such motions and an order denying reopening is reviewed

under a "highly deferential abuse-of-discretion standard." Zhao v. Gonzales, 404

F.3d 295, 303 (5 Cir. 2005). We find no error. Pulido-Alatorre failed to comply

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with the procedural requirements for filing a motion to reopen; the BIA

determined that he failed to append an application for adjustment of status to

his motion to reopen as required by 8 C.F.R. § 1003.2(c)(1). His motion is

procedurally defaulted. See Tapia-Martinez v. Gonzales, 142 Fed.App'x. 882,

884-85 (6 Cir. 2005)(affirming BIA's denial of non-citizen's motion to reopen

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where it was not supported with a copy of the application for relief requested).

Furthermore, the petitioner failed to make a showing that, if permission to

reapply were granted, he would be eligible for admission. Accordingly, we find

that the BIA did not abuse its discretion in denying Pulido-Alatorre's motion to

reopen. Accordingly, the BIA is entitled to deference; the petition for review is

DENIED.

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