Courts have long used the categorical approach to determine whether a migrant has been convicted of a removable offense. Along with its sibling, the modified categorical approach, this method of statutory interpretation is central to the work of crimmigration attorneys. In the last year, attorneys and courts have had much to consider as they’ve grappled with the impact of the U.S. Supreme Court’s 2013 decision in Descamps v. United States, 133 S. Ct. 2276 (2013) (which I blogged about here). There the Court reiterated that the categorical approach remains the default method of statutory analysis and the modified categorical approach applies only when a statute is divisible.
In a case argued by Vanessa Alonso, an associate at García and García Attorneys at Law, crImmigration.com’s patrocinador and the attorney where I’m of counsel, an immigration judge in Texas recently applied Descamps to the Texas assault statute in a way that is quite instructive. Matter of —, (Pearsall Immigration Court, Immigration Judge Harlow, September 10, 2014). Alonso’s client was convicted of two instances of assault under Texas law and DHS claimed that this made him removable as a migrant who had been convicted of two crimes involving moral turpitude.
There are three ways to commit assault in Texas:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
Tex. Penal Code § 22.01. According to the Fifth Circuit (in which Texas is located), Texas assault is a divisible offense because in some instances in can constitute a crime involving moral turpitude, but in other instances it does not. Specifically, the Fifth Circuit held that subsection (3) encompasses conduct that is not necessarily morally turpitudinous. Esparza-Rodriguez v. Holder, 699 F.3d 821, 825 (5th Cir. 2012). Since this is a divisible offense, the immigration judge correctly concluded that Descamps calls for use of the modified categorical approach to try to figure out whether the migrant was convicted of a form of assault that is a CIMT.
It’s the role of the modified categorical approach, the Supreme Court explained in Descamps, to help immigration judges figure out whether a respondent was convicted of a version of assault that involves recklessness (thus is not a CIMT), intent (thus is a CIMT, or knowing conduct (thus is a CIMT). As the Court put it, “All the modified approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates “several different … crimes.” If at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of. That is the job…of the modified approach: to identify, from among several alternatives, the crime of conviction so that the court can compare it to the generic offense.” 133 S. Ct. at 2285.
Using the modified categorical approach, the immigration judge concluded that Alonso’s client was convicted pursuant to subsection (1) of the Texas statute because the charging document used in the criminal case specified that he engaged in this conduct “intentionally, knowingly, or recklessly.” Only subsection (1) includes recklessness as a mental state that can result in an assault conviction. The other two subsections require higher mental states.
At this point, the immigration judge’s analysis really gets interesting. Texas courts, the immigration judge explained, do not require a defendant to plead guilty to a specific mental state. All that is required is for the defendant to have pleaded to having acted with one of the three mental states listed in the statute: intentionally, knowingly, or recklessly. Typically, reckless conduct is not morally turpitudinous. A person who was convicted of acting recklessly is deemed to have been convicted of a CIMT only if the reckless state of mind was “coupled with an offense involving infliction of serious bodily injury.” Matter of —, at 3. There is no indication in the record of conviction that Alonso’s client met this requirement. As a result, the immigration judge concluded that respondent was not convicted of a CIMT.
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