# United States Court **of Appeals**  **f or 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 The opinion, 60 F.4th 914 (5th Cir. Feb. 23, 2023), is **WITHDRAWN** .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 fol lowing 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 Case: 21-60324 Document: 00516738221 Page: 1 Date Filed: 05/04/2023No. 21

- 60324

2 Francis Zamaro

- Silverio 1 petitions for review of the denial by the Board of Immigration Appeals (“BIA”) of cancellation of removal and volun

tary departure. The BIA held that Zamaro

- Silverio had been convicted of a crime involving moral t urpitude (“CIMT”) and thus found her ineligible for th o se forms of discretionary relief. B ecause 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. S he is married to a U

. S

. citizen, has been continuously employ ed 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 pedes trian with her car. The pedestrian “spun in the air and landed on the pave ment,” but Zamaro

Silverio 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 sen
tenced to five years ’ deferred adjudication.
While Zamaro

- Silverio was on deferred adjudication , the Department of Home land Security arrested her and charg ed her with being present with

out admis sion or parole under section 212(a)(6)(A)(i) of the Immi gration and Nation ality 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 ; s he also requested voluntary departure. The I mmigration Judge (“I.J.”) de nied her applicatio n, 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 spell ed with an ‘i’: ‘Zamaro

- Silverio.’ Case: 21-60324 Document: 00516738221 Page: 2 Date Filed: 05/04/2023No. 21

- 60324

3 Zamaro

- Silverio appealed to the BIA, wh ich affirmed

. In her petition for review, Zamaro

- Silv e rio contends that her convictio n 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 par

ties 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 novo the BIA ’ s conclusion o n whether an offense qualifies as a CIMT , but we give Chevron deference to the a gency ’ s interpre

tation 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

. ’ ” Ne gusie 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 departur e. 8 U.S.C. § 1227(a)(2)(A)(i)(I). I f it is not, the I.J. should determine, in the first instance, whether she is entitled to such discre

tionary relief.
Zamaro

- Silverio was c onvicted under Texas Transportation Code § 550.021 , which states , (a) The operator of a vehicle involved in an accident that re

Case: 21-60324 Document: 00516738221 Page: 3 Date Filed: 05/04/2023No. 21

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4 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 ve hi

cle 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 com

plies with the requirements of Section 550.023. Section 550.023 define s the re quirements of subsection (4). It require s the operator of a vehicle to (1) give the operator ’ s name and address, the registration num

ber 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 in

volved in the collision; (2) if requested and available, show the operator ’ s driver ’ s li

cense to a person described by Subdivision (1); and (3) provide any person injured in the acci dent reasonable assis

tance, including transporting or making arrangements for trans porting 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. **T ex. 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.” Villegas

Sarabia , 874 F.3d at 877 . In the Fifth Cir cuit, that requires us first to deter

Case: 21-60324 Document: 00516738221 Page: 4 Date Filed: 05/04/2023No. 21

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5 mine the “minimum conduct” that would reasonably lead to a conviction under the statute. Id. We th en 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 stat

ute

. . . rather than the circumstances surrounding the par ticular trans gres
sion.” Id

. (quoting Amouzadeh v. Winfrey , 467 F.3d 451, 455 ( 5th Cir. 2006) (sec ond alteration in original))

. But that has not always been the analysis. Before Mathis v. United States , 579 U.S. 500 (2016) , the Fifth C ircuit used the “modified categorical approach

. ” See Gomez

- Perez v. Lynch , 829 F.3d 323, 32 6

– 28 (5th Cir. 2016). I f 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 ve rsion 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 “fail ure 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, t he court looked at the actual underl ying conviction and noted that the alien in that case had been convicted of failing to render aid. Id. a t 2 89

. 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. Case: 21-60324 Document: 00516738221 Page: 5 Date Filed: 05/04/2023No. 21

- 60324

6 Zamaro

- Silverio

. But in the wake of Mathis , th at 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 Zamaro

S ilverio’s statute of conviction is the failure to remain at the scene of the acci

dent 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 informati on is a CIMT. Villegas

- Sarabia , 874 F.3d
at 877

. Garcia

- Maldonado does not reach this question , and, simi larly, t he BIA did not answer i t. 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 , 5 55 U.S. at 517 (quot ing Orlando Ventura , 537 U.S. at 17) (alteration in original)

. 3 Therefore, the petition for review is **GRANTED** . W e **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. Case: 21-60324 Document: 00516738221 Page: 6 Date Filed: 05/04/2023