Martinez-Castelan v. Gonzales ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 6, 2006
Charles R. Fulbruge III
Clerk
No. 05-60472
Summary Calendar
LUIS MARTINEZ-CASTELAN,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A96 075 260
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Luis Martinez-Castelan, a native and citizen of Mexico, has
petitioned for review of a final order of the Board of
Immigration Appeals (BIA) dismissing his appeal of the
immigration judge’s order denying him cancellation of removal
and voluntary departure. Martinez-Castelan was convicted in 2003
of a felony under 18 U.S.C. § 1001(a)(2) for making a false
statement to the Federal Aviation Administration. The BIA held
that such a conviction was a crime involving moral turpitude
rendering him statutorily ineligible for cancellation of removal.
*
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this opinion should not be published and is not precedent except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.
No. 05-60472
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Martinez-Castelan argues on appeal that the BIA’s
determination that his crime involved moral turpitude was in
error. We apply a two-part standard of review to the BIA’s
conclusion that an alien has committed a crime involving moral
turpitude. Smalley v. Ashcroft, 354 F.3d 332, 335 (5th Cir.
2003). “First, we accord ‘substantial deference to the BIA’s
interpretation of the INA’ and its definition of the phrase
‘moral turpitude.’ Second, we review de novo whether the
elements of a state or federal crime fit the BIA’s definition of
a CIMT.” Id. at 335-36 (citations omitted). The BIA’s
determination of what constitutes moral turpitude must be upheld
if that determination is reasonable. Hamdan v. INS, 98 F.3d 183,
185 (5th Cir. 1996).
“Whether a crime involves moral turpitude depends upon the
inherent nature of the crime, as defined in the statute
concerned, rather than the circumstances surrounding the
particular transgression.” Pichardo v. INS, 104 F.3d 756, 759
(5th Cir. 1997). Section 1001(a)(2) criminalizes the knowing
and willful making of “any materially false, fictitious, or
fraudulent statement or representation” regarding “any matter
within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States.” “Crimes
including dishonesty or lying as an essential element involve
moral turpitude.” Omagah v. Ashcroft, 288 F.3d 254, 260 (5th
Cir. 2002); see also Padilla v. Gonzales, 397 F.3d 1016, 1020
No. 05-60472
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(7th Cir. 2005); Itani v. Ashcroft, 298 F.3d 1213, 1215 (11th
Cir. 2002). The BIA’s determination that a violation of
§ 1001(a)(2) constitutes moral turpitude is reasonable. See
Hamdan, 98 F.3d at 185. Accordingly, the petition for review is
DENIED.