United States Court of Appeals

for the Fifth Circuit

No. 21-60324

Francis Zamaro-Silvero, 

Petitioner, 

versus

Merrick Garland, U.S. Attorney General, 

Respondent. 

Petition for Review of an Order of

the Board of Immigration Appeals

Agency No. A216 860 672

ON MOTION TO AMEND OR CLARIFY

Before Smith, Clement, and Wilson, Circuit Judges. 

Per Curiam:

The respondent’s motion to amend or clarify is GRANTED. The 

opinion, 60 F.4th 914 (5th Cir. Feb. 23, 2023), is WITHDRAWN. The 

following opinion is SUBSTITUTED. 

* * * * *

Before Smith, Clement, and Wilson, Circuit Judges.

Jerry E. Smith, Circuit Judge:

United States Court of Appeals

Fifth Circuit

FILED

May 4, 2023

Lyle W. Cayce

Clerk

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Francis Zamaro-Silverio1 petitions for review of the denial by the 

Board of Immigration Appeals (“BIA”) of cancellation of removal and voluntary departure. The BIA held that Zamaro-Silverio had been convicted of a 

crime involving moral turpitude (“CIMT”) and thus found her ineligible for 

those forms of discretionary relief. Because the BIA did not perform the 

proper analysis, we grant review, vacate, and remand for determination of 

whether Zamaro-Silverio’s conviction was for a CIMT.

I.

Zamaro-Silverio is a citizen of Mexico. She entered the United States 

illegally in approximately 2000 and has six children. She is married to a U.S.

citizen, has been continuously employed since 2002, and has paid taxes every 

year since 2003. She is a caretaker to her father, a lawful permanent resident. 

She has many grandchildren in the United States, all of whom are U.S.

citizens. 

In 2017, Zamaro-Silverio accidentally struck a pedestrian with her car. 

The pedestrian “spun in the air and landed on the pavement,” but ZamaroSilverio fled the scene. In 2018, she entered a guilty plea in state court for a

third-degree felony per Texas Transportation Code § 550.021 and was sentenced to five years’ deferred adjudication. 

While Zamaro-Silverio was on deferred adjudication, the Department 

of Homeland Security arrested her and charged her with being present without admission or parole under section 212(a)(6)(A)(i) of the Immigration and 

Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i). In 2020, Zamaro-Silverio filed 

an application for cancellation of removal with the immigration court; she 

also requested voluntary departure. The Immigration Judge (“I.J.”) denied 

her application, finding her conviction to be for a CIMT that rendered her 

ineligible for cancellation under 8 U.S.C. § 1227(a)(2)(A)(i)(I). 

1 Contrary to court records, petitioner has notified us that her name is spelled with 

an ‘i’: ‘Zamaro-Silverio.’

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Zamaro-Silverio appealed to the BIA, which affirmed. In her petition 

for review, Zamaro-Silverio contends that her conviction was not for a 

CIMT. Before filing its response brief, the parties filed a joint motion for 

remand, which was denied by the motions panel. Zamaro-Silverio then filed 

a motion to reconsider with the BIA, which also denied the motion. The parties have filed supplemental briefing asking us to review whether the BIA’s 

denial of the motion for reconsideration was error.

II.

This court reviews de novothe BIA’s conclusion onwhether an offense 

qualifies as a CIMT, but we give Chevron deference to the agency’s interpretation of the phrase “moral turpitude.” Villegas-Sarabia v. Sessions, 874 F.3d 

871, 877 (5th Cir. 2017). We review decisions of the I.J. only to the extent 

they affect the ruling of the BIA. Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 

2007). If, however, the “the BIA has not spoken on ‘a matter that statutes 

place primarily in agency hands,’ our ordinary rule is to remand to ‘giv[e] the 

BIA the opportunity to address the matter in the first instance in light of its 

own expertise.’” Negusie v. Holder, 555 U.S. 511, 517 (2009) (quoting INS v. 

Orlando Ventura, 537 U.S. 12, 16–17 (2002) (per curiam) (alteration in 

original).

III.

Zamaro-Silverio asks us to consider whether her conviction is for a 

CIMT. If it is, she is automatically ineligible for cancellation of removal or 

voluntary departure. 8 U.S.C. § 1227(a)(2)(A)(i)(I). If it is not, the I.J. 

should determine, in the first instance, whether she is entitled to such discretionary relief. 

Zamaro-Silverio was convicted under Texas Transportation Code 

§ 550.021, which states,

(a) The operator of a vehicle involved in an accident that reCase: 21-60324 Document: 00516738221 Page: 3 Date Filed: 05/04/2023
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sults or is reasonably likely to result in injury to or death of a 

person shall:

(1) immediately stop the vehicle at the scene of the accident or 

as close to the scene as possible;

(2) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident;

(3) immediately determine whether a person is involved in the 

accident, and if a person is involved in the accident, whether 

that person requires aid; and

(4) remain at the scene of the accident until the operator complies with the requirements of Section 550.023. 

Section 550.023 defines the requirements of subsection (4). It requires the 

operator of a vehicle to

(1) give the operator’s name and address, the registration number of the vehicle the operator was driving, and the name of the 

operator’s motor vehicle liability insurer to any person injured 

or the operator or occupant of or person attending a vehicle involved in the collision;

(2) if requested and available, show the operator’s driver’s license to a person described by Subdivision (1); and

(3) provide any person injured in the accident reasonable assistance, including transporting or making arrangements for 

transporting the person to a physician or hospital for medical 

treatment if it is apparent that treatment is necessary, or if the 

injured person requests the transportation.

Tex. Transp. Code § 550.023.

Section 550.021 (Zamaro-Silverio’s statute of conviction) “includes 

alternative means of commission.” Garcia-Maldonado v. Gonzales, 491 F.3d 

284, 289 (5th Cir. 2007). To determine whether a conviction is for a CIMT

under such a statute, courts apply the “categorical approach.” VillegasSarabia, 874 F.3d at 877. In the Fifth Circuit, that requires us first to deterCase: 21-60324 Document: 00516738221 Page: 4 Date Filed: 05/04/2023
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mine the “minimum conduct” that would reasonably lead to a conviction 

under the statute. Id. We then ask whether that minimum conduct is a 

CIMT, not whether the alien’s actual conduct is a CIMT. In other words, 

we “focus[] on the inherent nature of the crime, as defined in the statute . . . rather than the circumstances surrounding the particular transgression.” Id. (quoting Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006)

(second alteration in original)).

But that has not always been the analysis. Before Mathis v. United 

States, 579 U.S. 500 (2016), the Fifth Circuit used the “modified categorical 

approach.” See Gomez-Perez v. Lynch, 829 F.3d 323, 326–28 (5th Cir. 2016). 

If a statute prohibited two distinct means of accomplishing a crime, the court 

would “look to the alien’s record of conviction.” Garcia-Maldonado, 

491 F.3d at 288 (citing Smalley v. Ashcroft, 354 F.3d 332, 336 (5th Cir. 2003)). 

The question was whether that conduct was considered a CIMT.

Before Mathis was decided, our court considered whether a defendant 

who had violated a prior version of the Texas statute had committed a 

CIMT.2 Garcia-Maldonado, 491 F.3d at 287–88. The court first determined 

that the statute could be violated by a showing of either “failure to share 

information” or “failure to . . . render aid.” Id. at 288–89 (citing Sheldon v. 

State, 100 S.W.3d 497, 504 (Tex. App.—Austin 2003, pet. ref’d)). Applying 

the (now outdated) modified categorical approach, the court looked at the 

actual underlying conviction and noted that the alien in that case had been 

convicted of failing to render aid. Id. at 289. It then held that the failure to 

render aid was a CIMT. Id. at 290. 

The BIA found that Garcia-Maldonado controlled the outcome for 

2 The main difference between the statutes is that the current § 550.021(3) was not 

included. That does not affect the analysis.

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Zamaro-Silverio. But in the wake of Mathis, that analysis is incorrect. The

proper focus is now on the minimum conduct prohibited by the statute, not 

on Zamaro-Silverio’s particular actions. 

The minimum conduct that can trigger liability under ZamaroSilverio’s statute of conviction is the failure to remain at the scene of the accident and provide one’s name and other information. See Tex. Transp. 

Code § 550.021(a)(4). Thus, Zamaro-Silverio’s deportability hinges on 

whether failure to share information is a CIMT. Villegas-Sarabia, 874 F.3d 

at 877. Garcia-Maldonado does not reach this question, and, similarly, the 

BIA did not answer it. Given that “our ordinary rule is to remand to ‘giv[e] 

the BIA the opportunity to address the matter in the first instance in light of 

its own expertise,’” we go no further. Negusie, 555 U.S. at 517 (quoting

Orlando Ventura, 537 U.S. at 17) (alteration in original).

3

 

Therefore, the petition for review is GRANTED. We VACATE

and REMAND to the BIA with instruction to determine whether the failure 

to share information under § 550.021(a)(4) is a CIMT.

3 Because we vacate and remand, we do not reach the remaining issues presented 

in the petition for review.

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