Immigration Law

CA5 on CIMT, 'de minimus touching' - Cisneros-Guerrerro v. Holder

"Proceeding pro se, Salvador Cisneros-Guerrerro, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals finding that his prior offense of public lewdness, under Texas Penal Code § 21.07, was categorically a crime involving moral turpitude and that he was therefore ineligible for cancellation of removal under § 240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1). We GRANT Cisneros-Guerrerro’s petition. ... Under its plain language, section 21.07 is divisible into at least one subsection that proscribes turpitudinous conduct and at least one subsection that proscribes non-turpitudinous conduct. ... [T]he statute, coupled with caselaw, proscribes inoffensive and ubiquitous conduct... Such de minimis touching, even in public, may involve proscribed misdemeanor conduct, but, we hold, does not “shock[] the public conscience as being inherently base, vile, or depraved.” ... Because section 21.07 is divisible into discrete subsections of turpitudinous acts and non-turpitudinous acts, Cisneros’s offense under that statute is not categorically a CIMT. The IJ and BIA therefore erred in declining to review Cisneros’s record of conviction, under the modified categorical approach, to determine whether Cisneros was convicted under a subsection that describes a CIMT. ... For the foregoing reasons, Cisneros’s petition for review is GRANTED. We VACATE the BIA’s decision and REMAND for further proceedings consistent with this opinion." - Cisneros-Guerrerro v. Holder, Dec. 29, 2014.