David Lazaro v. Eric Holder, Jr.

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David Lazaro v. Eric Holder, Jr.

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Case: 09-60531

Document: 00511185113

Page: 1

Date Filed: 07/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60531 S u m m a r y Calendar July 26, 2010 Lyle W. Cayce Clerk

D A V I D JULIUS LAZARO, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent

P e t it io n s for Review of Orders of the B o a r d of Immigration Appeals B I A No. A097 672 983

B e fo r e DAVIS, SMITH and DENNIS, Circuit Judges. P E R CURIAM:* D a v id Julius Lazaro, a native and citizen of Tanzania, petitions this court fo r review of the Board of Immigration Appeals' (BIA) decision dismissing his a p p e a l of the Immigration Judge's order that he was removable under 8 U.S.C. § 1227(a)(2)(A)(i) and (a)(2)(A)(ii) because he (a) committed within five years of h is lawful admission a crime of moral turpitude, and (b) was convicted after his a d m is s io n of two crimes involving moral turpitude that did not arise out of a

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

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Document: 00511185113 Page: 2 No. 09-60531

Date Filed: 07/26/2010

s in g le scheme of criminal misconduct. He also petitions this court for review of t h e BIA's denial of his motion for reconsideration. L a z a r o argues on appeal that his prior offenses ­ i.e., an assault family v io le n c e offense under TEX. PENAL CODE ANN. § 22.01 (Vernon 2003) and a theft o ffe n s e under TEX. PENAL CODE ANN. § 31.03 (Vernon 2003) ­ are not crimes of m o r a l turpitude. He does not dispute the BIA's conclusion that he is ineligible fo r cancellation of removal, and he therefore has abandoned any challenge on t h a t ground. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). W e apply a two-part standard of review to the BIA's conclusion that L a z a r o committed a crime involving moral turpitude. Amouzadeh v. Winfrey, 4 6 7 F.3d 451, 455 (5th Cir. 2006). First, we accord substantial deference to the B I A 's interpretation of the Immigration and Nationality Act and its definition o f the phrase "moral turpitude." Id. Second, we review de novo whether the e le m e n t s of a state or federal crime fit the BIA's definition of a crime involving m o r a l turpitude. Id The BIA's determination of what constitutes moral

t u r p it u d e must be upheld if that determination is reasonable. Hamdan v. INS, 9 8 F.3d 183, 185 (5th Cir. 1996). Section 22.01, which criminalizes assault, encompasses acts that both are a n d are not crimes of moral turpitude; we therefore must review the record of c o n v ic t io n to determine whether Lazaro's offense falls into a subsection that is a crime of moral turpitude. See Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th C ir . 2006). The record reveals that Lazaro was convicted under the provision of § 22.01 that provides enhanced punishment to a defendant convicted of multiple a s s a u lts against persons with whom he has a special relationship. § 22.01(b)(2)(A). See

In this case, the conditions of supervision portion of the

ju d g m e n t , which requires Lazaro to participate in domestic violence treatment p r o g r a m s , confirms that the victim of the offense was his wife. Moreover, the c h a r g in g instrument, which states that Lazaro caused bodily injury to his wife b y striking, pulling, and grabbing her, reveals that Lazaro was convicted of an 2

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Date Filed: 07/26/2010

in t e n t io n a l and injurious crime. Thus, because the record shows that Lazaro w a s convicted of intentionally inflicting bodily injury upon his wife, the BIA's c o n c lu s io n that his assault offense was a crime involving moral turpitude was r e a s o n a b le . See In re Tran, 21 I&N Dec. 291, 294 (BIA 1996) (holding that s t a t u t e requiring the willful infliction of corporal injury resulting in a traumatic c o n d itio n upon, inter alia, the perpetrator's spouse was crime involving moral t u r p it u d e ); see also In re Sanudo, 23 I&N at 970-71 (indicating that moral t u r p it u d e necessarily inheres in assault and battery offenses that involve the in flic t io n of bodily harm upon a person whom society views as deserving of s p e c ia l protection, such as a domestic partner). U n d e r § 1227(a)(2)(A)(i), an alien is removable if he has been convicted of a crime of moral turpitude within five years after the date of admission, and a s e n te n c e of one year or longer may be imposed for the offense. Lazaro does not d is p u t e that his assault offense was punishable by a term of more than one year o f imprisonment or was committed within five years of his admission. Thus, any c h a lle n g e to either the sentence that could be imposed for his offense or the date u s e d to determine his date of admission are abandoned. See Soadjede, 324 F. 3d a t 833. Lazaro has not demonstrated that the BIA wrongly found that he was r e m o v a b le under § 1227(a)(2)(A)(i), and his petition for review of the BIA's d is m is s a l of his appeal should be denied. Because Lazaro is removable under § 1227(a)(2)(A)(i), we need not review whether the BIA also correctly found that h e was removable under § 1227(a)(2)(A)(ii). L a z a r o timely filed a separate petition for review from the BIA's denial of h is motion for reconsideration. However, his brief to this court addresses only t h e BIA's decision dismissing his appeal; he raises no issues with respect to the B I A 's denial of his motion for reconsideration. Accordingly, any challenge to the B I A 's denial of his motion for reconsideration has been waived. See Soadjede, 3 2 4 F.3d at 833. F o r the foregoing reasons, Lazaro's petitions for review are DENIED. 3