Jesus Corral-Trevizo v. Eric Holder, Jr. , 560 F. App'x 421 ( 2014 )

Case: 13-60337 Document: 00512630190 Page: 1 Date Filed: 05/14/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60337
United States Court of Appeals
Fifth Circuit
FILED
JESUS ROBERTO CORRAL-TREVIZO, May 14, 2014
Lyle W. Cayce
Petitioner Clerk
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A034 979 405
Before REAVLEY, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Jesus Roberto Corral-Trevizo (Corral), a native and citizen of Mexico,
petitions for review of a decision of Board of Immigration Appeals (BIA)
dismissing his appeal of a decision by an immigration judge (IJ) ordering him
removed under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an
aggravated felony. The BIA affirmed the IJ’s decision only to the extent that
it found that Corral’s prior offense under 26 U.S.C. § 7202 categorically met
the definition of an aggravated felony under Clause (i) of 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-60337 Document: 00512630190 Page: 2 Date Filed: 05/14/2014
No. 13-60337
§ 1101(a)(43)(M). It did not address the IJ’s determination that the offense
met the definition under Clause (ii).
The parties concur, and a plain reading of the statute reveals, that there
is at least one way to commit a § 7202 offense that does not involve fraud or
deceit. Thus, Corral’s conviction is not categorically an aggravated felony. See
Larin-Ulloa v. Gonzales, 462 F.3d 456, 464-67 (5th Cir. 2006). The
Government urges that under the modified categorical approach, however, it
is clear that Corral pleaded guilty to an offense necessarily involving fraud or
deceit because the information charged Corral with “willfully fail[ing] to
truthfully account for and pay” the taxes that were due. Corral’s plea
agreement included a factual basis, however, indicating that Corral agreed
only that he failed to pay the taxes, a failure which did not necessarily require
fraud or deceit. Corral’s admission to failing to pay the tax was sufficient for
a conviction under § 7202. See United States v. Gilbert, 266 F.3d 1180, 1184-
85 (9th Cir. 2001); United States v. Evangelista, 122 F.3d 112, 120-22 (2d Cir.
1997). Thus, although the information was charged in the conjunctive, it is not
clear that Corral was necessarily admitting that his offense involved fraud or
deceit. See United States v. Morales-Martinez, 496 F.3d 356, 358-59 (5th Cir.
2007); cf. Descamps v. United States, 133 S. Ct. 2276, 2288 (2013) (“[W]hatever
[defendant] says, or fails to say, about superfluous facts cannot license a later
sentencing court to impose extra punishment.”). Because the documents
approved for review under the modified categorical approach “are insufficient
to establish that [Corral] was necessarily convicted of an aggravated felony,”
i.e. one involving fraud or deceit, the petitioner must prevail. Larin-Ulloa, 462
F.3d at 464 (emphasis added).
Corral’s § 7202 offense was not categorically an aggravated felony under
Clause (i) of 8 U.S.C. § 1101(a)(43)(M). We do not reach the question whether
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Case: 13-60337 Document: 00512630190 Page: 3 Date Filed: 05/14/2014
No. 13-60337
the offense meets the definition of an aggravated felony under Clause (ii)
because the BIA did not address it.
We GRANT Corral’s petition for review, VACATE the BIA’s decision, and
REMAND the case for further proceedings.
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