Mejia v. INS ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-60655
Summary Calendar
_______________________
OTONIEL MEJIA,
Petitioner,
versus,
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
_________________________________________________________________
Petition for Review of an Order of
The Board of Immigration Appeals
(A91 473 614)
_________________________________________________________________
July 9, 1997
Before JONES, DeMOSS, AND PARKER, Circuit Judges.
PER CURIAM:*
Petitioner Otoniel Mejia appeals decision of the Board of
Immigration Appeals (“BIA” or the “Board”) in which the Board
denied Mejia’s request for relief. For the following reasons, we
affirm the decision of the BIA.
*
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this opinion should not be published and is not precedent except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.
BACKGROUND
Petitioner Otoniel Mejia, a citizen of El Salvador,
entered the United States without inspection prior to 1982. He
later applied for legalization under the amnesty provisions of the
Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100
Stat. 3359. He was granted temporary resident status, the first
step in achieving legalization. See 8 U.S.C. § 1255a(a). On
January 28, 1994, Mejia pleaded guilty in Dallas County, Texas to
aggravated assault on a peace officer for striking a police officer
in the nose thereby giving the officer a bloody nose. As a result
of this felony conviction, his temporary resident status was
terminated, and the Immigration and Naturalization Service (the
“INS”) placed him in deportation proceedings. He was charged with
being subject to deportation because of his entry into the United
States without inspection in violation of 8 U.S.C. § 1251(a)(1)(B).
Mejia petitioned for suspension of deportation,
withholding of deportation, and political asylum. The INS
contended that Mejia was ineligible for suspension of deportation
because of his conviction for aggravated assault on a peace
officer, a crime involving moral turpitude; it also contended that
he was ineligible for political asylum and withholding of
deportation because the aggravated assault was a serious crime
constituting a danger to the community. The Immigration Judge
(“IJ”) agreed with the INS and ruled that Mejia was ineligible for
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suspension of deportation and voluntary departure because his
conviction was a crime of moral turpitude; the IJ also ruled that
he was ineligible for political asylum and withholding of
deportation because his felony conviction was a crime of violence
and he constituted a danger to the community. He was ordered
deported.
Mejia appealed to the BIA which agreed with the ruling of
the IJ and denied his appeal. He now petitions this court for
review of the BIA decision.
Before this court, Mejia complains that the BIA erred in
concluding that he was not entitled to voluntary departure and
suspension of deportation because Mejia’s conviction for aggravated
assault on a peace officer was not a crime involving moral
turpitude. He further complains that the BIA erred in concluding
that he was not entitled to political asylum and withholding of
deportation because his conviction for aggravated assault on a
peace officer was not a very serious crime.
DISCUSSION
BIA’s Ruling Regarding Suspension of Deportation
An alien seeking suspension of deportation must prove
physical presence in the United States for a period of not less
than seven years and “that during all of such period he was and is
a person of good moral character.” See 8 U.S.C. § 1254(a)(1). An
alien bears the burden of demonstrating eligibility for suspension
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of deportation, and this court will uphold the BIA’s finding that
an alien lacked good moral character for purposes of suspension of
deportation if the finding is supported by substantial evidence.
See Hernandez-Cordero v. INS, 819 F.2d 558, 560 (5th Cir. 1987)(en
banc). “The substantial evidence standard requires only that the
Board’s conclusion be based upon the evidence presented and be
substantially reasonable.” Rojas v. INS, 937 F.2d 186, 189 (5th
Cir. 1991).
The BIA found that Mejia was deportable because his crime
of aggravated assault upon a peace officer was a crime involving
moral turpitude. See 8 U.S.C. § 1101(h)(3) (providing that an
alien convicted of a crime involving moral turpitude cannot
establish good moral character). Mejia complains that the BIA
erred in reaching this conclusion because it relied upon Matter of
Danesh, 19 I&N Dec. 699 (BIA 1988), in which the BIA held that a
conviction in Texas for aggravated assault against a peace officer
was a crime involving moral turpitude. Mejia argues that his case
is distinguishable because the statute upon which the BIA relied in
Danesh has been changed and was not the same statute to which Mejia
pleaded guilty. Specifically, the statute to which Mejia pleaded
guilty does not necessarily require a bodily harm element. We are
unpersuaded by Mejia’s argument.
“[A]n aggravated assault against a peace officer, which
results in bodily harm to the victim and which involves knowledge
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by the offender that his force is directed to an officer who is
performing an official duty, constitutes a crime that involves
moral turpitude.” Id. at 673. Mejia pleaded guilty to “knowingly
and intentionally caus[ing] bodily injury to Albert Pagan, . . . a
peace officer in the lawful discharge of official duty, by striking
[Officer Pagan] with his hand, when [Mejia] knew and had been
informed that [Officer Pagan] was a peace officer.” R. 188.2 It
is clear from the information to which Mejia pleaded guilty that he
actually caused bodily harm to his victim. Moreover, Mejia struck
Officer Pagan when, after Officer Pagan and another police officer
observed Mejia looking into and attempting to gain entry into
several parked vehicles and apartment windows, the officers
approached him. R. 189-90. He, “without warning and immediately,”
struck Officer Pagan, drawing blood. Id. We, therefore, find that
there was substantial evidence to support the BIA’s decision and
that its decision that Mejia’s conviction constituted a crime
involving moral turpitude was based upon the evidence presented and
was substantially reasonable.
2
Because Mejia pleaded guilty to an offense which embodied
physical harm to the officer, Hamdan v. INS, 98 F.3d 183 (5th Cir.
1996), is distinguishable. In that case, this court held that an
indictment for “simple kidnaping” did not necessarily reflect a
crime of moral turpitude, because the facts stated in the
indictment did not refute a familial relationship or indicate a
ransom demand or the use of force. 98 F.3d at 189. Here, the
actual commission of bodily injury was admitted.
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BIA’s Ruling Regarding Political Asylum
and Withholding of Deportation
Mejia next complains that the BIA erred in determining
that his offense of aggravated assault of a peace officer was a
particularly serious crime. An alien cannot qualify for
withholding of deportation if it is determined that, after
conviction for a particularly serious crime, he constitutes a
danger to the community. See 8 U.S.C. § 1253(h)(2). Likewise, an
alien’s asylum application is subject to mandatory denial if the
alien has been convicted of a particularly serious crime. See 8
C.F.R. § 208.14(d)(1). To the extent this issue involves a
question of law, we review the decision of the BIA de novo. See
Silwany-Rodriguez v. INS, 975 F.2d 1157, 1160 (5th Cir. 1992).
Questions of fact are reviewed to determine whether substantial
evidence supports the BIA’s findings. Id.In determining whether a conviction is for a particularly
serious crime, the analysis involves such factors as the nature of
the conviction, the circumstances and underlying facts of the
conviction, the type of sentence imposed, and whether the type and
circumstances of the crime indicate that an alien will be a danger
to the community. See Matter of B-, 20 I&N Dec. 427 (BIA 1991).
Once it is found that an alien has been convicted of a particularly
serious crime, it necessarily follows that the alien is a danger to
the community of the United States. See id. Crimes against persons
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are more likely to be categorized as particularly serious crimes.
See Matter of Frentescu, 18 I&N Dec. 244, 247 (BIA 1982).
As discussed supra, Mejia pleaded guilty to striking a
police officer after Mejia “knew and had been informed that
[Officer Pagan] was a peace officer,” which was a crime against a
person that constitutes a flagrant disregard for authority. There
was substantial evidence to support the ruling of the BIA.
CONCLUSION
For the foregoing reasons, the decision of the BIA is
AFFIRMED.
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