Manuel Martinez-Olivera v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [14-60320 Affirmed ] Judge: ECP , Judge: PRO , Judge: JEG Mandate pull date is 05/11/2015 [14-60320]

Case: 14-60320

Document: 00512975229

Page: 1

Date Filed: 03/19/2015

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 14-60320
Summary Calendar

March 19, 2015
Lyle W. Cayce
Clerk

MANUEL ISORO MARTINEZ-OLIVERA, also known as Manuel Isoid
Martinez,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 076 309
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Manuel Isoro Martinez-Olivera (Martinez), a native and citizen of
Mexico, entered the United States in 1987 without being admitted or paroled.
He now petitions this court for review of an order of the Board of Immigration
Appeals (BIA) upholding the decision of the immigration judge (IJ)
pretermitting his request for cancellation of removal. The primary thrust of

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

Case: 14-60320

Document: 00512975229

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Date Filed: 03/19/2015

No.14-60320
Martinez’s petition is that the BIA erred in determining that he was ineligible
for cancellation of removal based on his prior Texas conviction for assault
family violence, which was determined to be a crime involving moral turpitude.
Although we generally lack jurisdiction to review the decision to deny
discretionary relief, including cancellation of removal, see 8 U.S.C.
§§ 1252(a)(2)(B)(i), 1229b, we retain the authority to review “questions of law,”
§ 1252(a)(2)(D), including whether the BIA properly determined that an alien
committed a crime involving moral turpitude. See Hyder v. Keisler, 506 F.3d
388, 390 (5th Cir. 2007).
The Attorney General has the authority to cancel the removal of a
deportable nonresident alien if the alien meets certain conditions.

See

§ 1229b(b)(1). However, an alien who has been convicted of a crime involving
moral turpitude is not eligible for such relief.

§ 1229b(b)(1)(C); 8 U.S.C.

§ 1182(a)(2)(A)(i)(I). Martinez was convicted of violating Texas Penal Code
§ 22.01(a)(1), which prohibits “intentionally, knowingly, or recklessly caus[ing]
bodily injury to another.” We have previously upheld the BIA’s determination
that a conviction under this statute qualifies as a crime involving moral
turpitude. Esparza-Rodriguez v. Holder, 699 F.3d 821, 823-24 (5th Cir. 2012).
Although Martinez asserts that his conviction constitutes a petty offense that
does not bar cancellation of removal, his 210-day sentence exceeded six months
and thus does not fall under this exception. See § 1182(a)(2)(A)(ii)(II). Because
the BIA correctly determined that Martinez’s assault conviction constitutes a
crime involving moral turpitude rendering him ineligible for cancellation of
removal, it did not address his argument that his Texas conviction for
tampering with a government record was not a crime involving moral
turpitude or was a petty offense; we also decline to address this argument.

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Additionally, Martinez asserts that the BIA erred in upholding the IJ’s
denial of his request for voluntary departure.

This court generally lacks

jurisdiction over an appeal from the denial of such a request.

8 U.S.C.

§ 1229c(f). However, because the BIA determined that Martinez’s assault
conviction rendered him statutorily ineligible for voluntary departure, we have
jurisdiction to review this legal question. See § 1252(a)(2)(D); Hyder, 506 F.3d
at 390. Because Martinez’s assault conviction constitutes a crime involving
moral turpitude occurring less than five years before his request for voluntary
departure, the BIA correctly determined that Martinez was statutorily
ineligible for relief. See 8 U.S.C. §§ 1229c(b)(1)(B), 1101(f)(3). Accordingly,
Martinez’s petition for review is DENIED.

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