U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Stewart, Daniel DHS/ICE Office of Chief Counsel - DAL
Law Office of Daniel Stewart, PLLC 125 E. John Carpenter Fwy, Ste. 500
P.O. Box 540096 Irving, TX 75062-2324
Dallas, TX 75354

Name: CASTILLO TREJO, MANUEL DE ... A 059-745-573

Date of this notice: 3/3/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Dowu., c(1/VL)
Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Mann, Ana
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Manuel de Jesus Castillo Trejo, A059 745 573 (BIA March 3, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executiv.e-Office for Immigration Review

Falls Church, Virginia 22041

File: A059 745 573 - Dallas, TX Date:

In re: MANUEL DE JESUS CASTILLO TREJO MAR -3 2017

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Daniel Stewart, Esquire

ON BEHALF OF OHS: John L. Allums

Assistant Chief Counsel

APPLICATION: Termination

The respondent, a native and citizen of El Salvador and a lawful permanent resident of the
United States, appealed the Immigration Judge's decision, dated May 25, 2016, which denied his
request for termination of removal proceedings and ordered his removal from the United States.
The Department of Homeland Secwity requested summary affirmance. The appeal will be
sustained and the removal proceedings terminated.

The Immigration Judge correctly determined, on the basis of the record of conviction, that
the respondent was convicted of an offense under section 22.0l(a)(l) of the Texas Penal Code
("TPC"), which was enhanced due to the fact that that the victim was a public safety officer
(Exh. 2). See TPC 22.01 (b)(1). Relying on the decision of the United States Court of Appeals
for the Fifth Circuit in Esparza-Rodriguez v. Holder, 699 F.3d 821 (5th Cir. 2012), and the fact
that the respondent's criminal indictment charged that he "intentionally, knowingly, and
recklessly" caused bodily injury to another, the Immigration Judge found the respondent's
conviction involved a crime of moral turpitude (I.J. at 2-3).

Subsequent to the Immigration Judge's decision, the Fifth Circuit acknowledged that its
precedent in Esparza-Rodriguez v. Holder, supra was overruled by the United States Supreme
Court in Mathis v. U.S., 136 S.Ct. 2243 (2016). See Gomez-Perez v. Lynch, 829 F.3d 323, 328
n.5 (5th Cir. 2016). Specifically, TPC 22.0l(a)(l) is not a divisible statute, and thus recourse
may not be made to the record of conviction in order to determine the specific culpable mental
state of the defendant. Id. at 327-28. Thus, there is no basis on which to sustain the charge of
removability against the respondent. Accordingly, the following orders will be entered.

ORDER: The respondent's appeal is sustained.

FURTHER ORDER: The removal proceedings are terminated.

RTHE
\-
Cite as: Manuel de Jesus Castillo Trejo, A059 745 573 (BIA March 3, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS.TEXAS

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File: A059-745-573 May 25, 2016

In the Matter of

)
MANUEL DE JESUS CASTILLO TREJO ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: 237(a)(2)(A)(1), conviction of a crime involving moral

turpitude committed within five years after admission for
which a sentence of one year or longer may be imposed.

APPLICATIONS: Termination.

ON BEHALF OF RESPONDENT: Daniel Stewart

ON BEHALF OF OHS: John Allums

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 20-year-old male, native and citizen of El Salvador

who was admitted to the United States as a lawful permanent resident on March 27,

2008. A Notice to Appear was issued on March 18th, 2014, charged the respondent

with removability under the above-cited section. During a master calendar proceeding,

the respondent admitted allegations number 1, 2, and 3, denied allegations number 4

and 5, and denied the charge under 237(a)(2)(A)(1) and requested termination of the

proceeding.
 The issue in this case is whether the government has proven by clear and

convincing evidence that the respondent is removable as charged. In support of the

charge in the allegations, the government has introduced into the record as Exhibits

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number 2 and 3, copies of the conviction record in the respondent's criminal case. The

parties were afforded an opportunity to file briefs or other material, and the respondent

has filed a brief in which the argument is made that the requisite level of harm has not

been shown by the government and also that the requisite level of scienter has not been

shown. I have reviewed the brief and also the legal authorities, and I agree with the

government that the charge in this case is sufficient to satisfy the government's burden.

Specifically, the respondent was convicted of a third degree felony under

Texas Penal Code Section 22.01 on February 18, 2013, by way of indictment and

deferred adjudication. The face of the judgment does not indicate the particular

subsection of 22.01, which actually has three different subsections. Subsection A(1)

involves intentional, knowingly or recklessly causing bodily injury to another; Subsection

number A(2), intentionally or knowingly threatening another with imminent bodily harm;

and Subsection A(3) involves intentionally or knowingly causing physical contact with

another person when the person knows or should reasonably believe that the other will

regard the contact as offensive or provocative.

In this case, I find the 5th Circuit's decision in Esparza-Rodriguez v.

Holder, 699 F.3d 821 (5th Cir. 2012), to be sufficiently similar to the facts of this case as

to compel the same outcome as was the outcome in the Esparza case in which the 5th

Circuit held that a conviction under 22.01(a)(1) was a conviction involving moral

turpitude. This case is directly controlling on this point and is binding on the immigration

court. In the Esparza case, the 5th Circuit concluded that because subsection A(3)

potentially involved mere touching, that the 22.01 was necessarily a divisible statute and

A059-745-573 2 May 25, 2016

therefore that the modified categorical approach was the appropriate approach. In

using the modified approach, the 5th Circuit then found it appropriate to refer to the

charging instrument in the criminal case, and a review of that document indicated that

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the crime was committed with the requisite level of scienter, mainly that it was

intentional or knowing. In this case, the charging instrument indicates that the

respondent committed the offense intentionally, knowingly, and recklessly, causing

bodily injury to another person. Therefore, I conclude that the requisite level of scienter

is proven in this case, and also, Exhibit number 3, also indicates that the crime was

committed with the requisite level of scienter.

Now, in the Esparza case, the 5th Circuit made several statements

indicating that 22.01(a)(1) necessarily is a crime involving moral turpitude. They say

that : "The categorical approach applied to this case does not resolve the matter

because a subsection of the Texas assault statute, 22.01(a)(3), proscribes that physical

contact that is merely offensive or provocative," conduct that the Board held does not

qualify as morally turpitudinous, in citing to the Board's decision in Matter of Solon.

Now, the significance of the statement is that the 5th Circuit is saying here that (a)(1)

and (a)(2) necessarily do involve morally turpitudinous contact. Also, later on they say

as follows: "Even if we were to question the wisdom of the BIA's considered

determination that an assault with intent to cause more than a de minimis physical injury

as a CIMT, our inquiry here centers on the reasonableness of the BIA's conception of

the term moral turpitude."

So what they're saying here is that the statute in 22.01 (a)(1) necessarily

involves conduct which is more than de minimis in nature. They cite to two of their own

nonpublished decisions, which also supports the outcome of this case. Those are the

cases of Aldape-Garcia v. Holder, 472 F. App'x 304 (5th Cir. 2012) and Calderon-

A059-745-573 3 May 25, 2016

Dominguez, 261 F. App'x at 673. And they also cite to a Second Circuit case, that

where an assault involves more than a de minimis level of physical harm, it is contrary

to the accepted rules of morality and the duties owed between persons or societies in

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general. One other interesting feature of this Esparza case, which I'd like to point out, is

that the conclusion of the 5th Circuit that the case involved a conviction under

subsection (a)(1), because it was a Class A misdemeanor, was subsequent to the

statement of the 5th Circuit that it was necessary to resort to the modifying modified

categorical appmach. In other words, they did not conclude that merely because the

conviction was for a Class A misdemeanor. that for that reason alone that the

categorical approach was applicable. Instead. they looked at the offense level only after

concluding that the modified categorical approach was appropriate. For the same

reasons, I follow the same procedure, concluding first that the modified approach is

appropriate, and secondly, looking at the level of the offense and the charging

instrument in the case.

Additionally, I would like to point out that this conviction involves a victim

who is a public official, and thus in a category that the Board has indicated is entitled to

extra protection or enhanced consideration in considering questions of moral

turpitudinous conduct (citation to be provided). Thus, even apart from the 5th Circuit's

conclusion that 22.01(a)(1) in and of itself without any other aggravated factors,

necessarily involves a level of harm which is turpitudinous in nature. In this case, we

have the additional aggravating factor that the victim was a person who was deserving

of special protection and thus for that additional reason, I would find that this case

involves a level of harm which is sufficient to implicate moral turpitude.

For all these reasons, I find that the charge in this case has been

sustained by clear and convincing evidence. The respondent was afforded an

A059-745-573 4 May 25, 2016

,t,

opportunity to seek relief. He has declined to do so. Therefore, the following orders

would be entered.

ORDER

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It is ordered that the respondent be removed from the United States to El

Salvador on the charges contained in the Notice to Appear.

Please see the next page for electronic

signature
R. WAYNE KIMBALL
Immigration Judge

A059-745-573 5 May 25, 2016

/Isl/
Immigration Judge R. WAYNE KIMBALL
kiroballr on August 11, 2016 at 8:57 PM GMT

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A059-745-573 6 May 25, 2016