Elibaldo Ramirez Revolorio v. Eric Holder, Jr. ( 2014 )

Case: 11-60074 Document: 00512533822 Page: 1 Date Filed: 02/14/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 14, 2014
No. 11-60074 Lyle W. Cayce
Clerk
ELIBALDO RAMIREZ REVOLORIO, also known as Elibaldo Revolorio
Ramirez,
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. A091 630 097
Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Elibaldo Ramirez Revolorio petitions this Court for review of a Board of
Immigration Appeals (“BIA”) removal order. The BIA found Revolorio removable
pursuant to Immigration and Nationality Act (“INA”) § 237(a)(2)(A)(i), as an
alien convicted of a crime involving moral turpitude within five years of
admission; and also independently removable under INA § 237(a)(2)(A)(ii), as an
alien convicted of two or more crimes involving moral turpitude. See 8 U.S.C.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 11-60074
§§ 1227(a)(2)(A)(I) & 1227(a)(2)(A)(ii). The only question before us is whether
Revolorio’s two convictions of assault, TEXAS PENAL CODE § 22.01, were properly
classified as crimes involving moral turpitude. Revolorio pled guilty to, and was
convicted of, assault on three separate occasions. Revolorio was convicted first
on January 8, 1991; again on November 10, 1998 (later vacated); and again on
November 11, 1998. Because the BIA did not reach the November 11, 1998,
conviction, we do not consider it here. Sajan v. Mukasey, 257 F. App’x 736, 740
(5th Cir. 2007).
The INA affords this Court jurisdiction to review orders of removal. 8
U.S.C. § 1252(b). We review de novo the classification of a conviction as a crime
of moral turpitude, while affording “substantial deference” to the BIA’s definition
of moral turpitude. Hyder v. Keisler, 506 F.3d 388, 390 (5th Cir. 2007). We have
long held that, in making this determination, judges must employ a modified
categorical approach, considering only “the inherent nature of the crime, as
defined in the statute,” or, in the case of divisible statutes, “the alien’s record of
conviction.” Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006) (internal
quotation marks and citations omitted); U.S. ex rel. McKenzie v. Savoretti, 200
F.2d 546, 548 (1952). This record is limited to “the charging document, written
plea agreement, transcript of the plea colloquy, and any explicit factual findings
by the trial judge to which the defendant assented.” United States v.
Murillo-Lopez, 444 F.3d 337, 340 (5th Cir. 2006) (quoting Shepard v. United
States, 544 U.S. 13 (2005)) (other citations omitted). We do not permit extrinsic
examination of the “circumstances surrounding the particular transgression.”
Amouzadeh, 467 F.3d at 455.
Simple assault or battery does not generally involve moral turpitude
unless there is some aggravating factor indicative of moral depravity. See
Pichardo v. INS, 104 F.3d 756, 759–60 (5th Cir. 1997); Matter of Fualaau, 21
I. & N. Dec. 475, 477 (B.I.A. 1996); Matter of Short, 20 I. & N. Dec. 136, 139
2
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No. 11-60074
(B.I.A. 1989). This requisite element is satisfied where the offense involves the
infliction of serious injury upon a person deserving special protection, such as a
family member or a peace officer. See Garcia v. Attorney Gen. of the United
States, 329 F.3d 1217, 1222 (11th Cir. 2003); Pichardo, 104 F.3d at 760; Matter
of Sanudo, 23 I. & N. Dec. 963, 970–72 (B.I.A. 2006).
Here, in classifying Revolorio’s two prior offenses, the immigration judge
looked beyond the conviction records to find evidence of the requisite
aggravating factor. Specifically, a police report stated that the victim of the 1991
assault was a peace officer, and a probable-cause affidavit indicated that the
victim of the November 10, 1998, assault was a former domestic partner. The
immigration judge and the BIA conceded that these documents are not part of
the record of conviction, but noted that the documents are permissible under the
analytical framework established by the Attorney General in Matter of Silva-
Trevino, 24 I. & N. Dec. 687 (A.G. 2008). We recently held that the Silva-
Trevino approach—insofar as it permits extrinsic examination of documents
outside the record of conviction—is inconsistent with the unambiguous language
of the INA. See generally Silva-Trevino v. Holder, No. 11-60464, --- F.3d ---- (5th
Cir. 2013). As a consequence, that approach has not displaced our precedent,
which does not permit an examination of the police report or affidavit used to
classify Revolorio’s offenses. United States v. Murillo-Lopez, 444 F.3d 337, 340
(5th Cir. 2006).1
Accordingly, we GRANT Revolorio’s petition, VACATE the decision of the
Board of Immigration Appeals, and REMAND for further proceedings.
1
Revolorio also argues that, because the November, 10th, 1998, conviction was vacated,
it cannot be used as a basis for removal. At oral argument, however, the Attorney General
stated that it no longer asserts that conviction as any ground for removal. Because we find
error in the method used to classify the offenses as crimes involving moral turpitude, and
because the Attorney General no longer asserts the November, 10th, 1998, offense as a basis
for removal, we need not address Revolorio’s argument.
3