An Immigration Judge (IJ) in Texas recently determined that a Texas conviction for failure to stop and render aid, Tex. Transp. Code §§ 550.021, 550.023, is not a crime involving moral turpitude where the conviction results from an individual’s failure to provide his name and address to an injured party or occupant of a vehicle involved in a collision. Matter of —- (Port Isabel, Texas Immigration Court July 25, 2011). This case was argued by crImmigration.com patrocinador Carlos M. García of García & García Attorneys at Law P.L.L.C.
This case involved an individual who became an LPR on August 15, 2002. On April 28, 2007 he was involved in an incident that subsequently led to his conviction for failure to stop and render aid. DHS alleged that this conviction rendered him removable for having been convicted of a CIMT within five years of admission, INA § 237(a)(2)(A)(i). Matter of —-, slip op. at 1. Attorney García challenged this allegation and, in the alternative, filed for adjustment of status under INA § 245(a) along with a waiver of inadmissibility under INA § 212(h).). Matter of —-, slip op. at 2.
The IJ agreed with Attorney García all around. The IJ began by addressing Attorney García’s argument that DHS had failed to prove that the Respondent was removable. Applying the first prong of Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008)—the categorical approach to statutory analysis—the IJ determined that failure to render aid is a divisible statute which includes some actions that involve moral turpitude and others that do not. Matter of —-, slip op. at 5 (discussing Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007).
Turning to Silva-Treviño’s second prong—the modified categorical approach—the IJ reviewed the record of conviction and found that the Respondent was convicted of violating Tex. Transp. Code § 550.023(1), a provision that penalizes failure to give one’s name and address to a person or occupant of another vehicle involved in a collision. Matter of —-, slip op. at 5.
The IJ explained that while the Fifth Circuit determined in Garcia-Maldonado that a conviction under § 550.023(3) for failure to render assistance to an injured person involved moral turpitude, “Garcia-Maldonado does not explicitly address the other prongs of the statute of conviction….” Matter of —-, slip op. at 6. Furthermore, “the reasoning in Garcia-Maldonado implies that failure to provide personal information can be clearly differentiated from knowingly failing to provide medical assistance and that the former does not involve the same kind of base behavior.” Matter of —-, slip op. at 6.
Accordingly, the IJ concluded that the Respondent’s conviction was not for a crime involving moral turpitude. As such, the government failed to meet its burden of showing by clear and convincing evidence that the Respondent was removable. Matter of —-, slip op. at 6.
Despite siding with the Respondent regarding DHS’s failure to prove removability, the IJ went on to note that he would, in the alternative, grant a § 212(h) waiver of inadmissibility even if the Respondent had been found removable. Matter of —-, slip op. at 7-9.
The Respondent’s spouse, child, and father are U.S. citizens and his mother is an LPR. Along with evidence of the financial difficulties that these qualifying relatives would suffer if Respondent were removed, Attorney García submitted a report from the Respondent’s wife’s mental health therapist attesting to her mental health condition, “including depression related to Respondent’s detention, combined with onset post-partum depression.” Matter of —-, slip op. at 8. Of the qualifying relatives, the IJ found that the Respondent’s spouse and child would suffer extreme hardship if the Respondent were removed. Matter of —-, slip op. at 9.
Consequently, the IJ granted a § 212(h) waiver and adjustment of status as alternative relief.