Javier Ortiz Macedo v. Eric Holder, Jr. , 582 F. App'x 488 ( 2014 )

Case: 13-60770 Document: 00512786151 Page: 1 Date Filed: 09/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60770
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 29, 2014
JAVIER ORTIZ MACEDO, also known as Javier Ortiz,
Lyle W. Cayce
Clerk
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. A094 076 408
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM: *
Javier Ortiz Macedo (Ortiz), a native and citizen of Mexico, petitions for
review of a decision of the Board of Immigration Appeals (BIA) finding him
ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1). Ortiz
argues that, contrary to the BIA’s decision, his conviction under Texas Penal
Code § 38.02(b) as enhanced by subsection (d)(2) is not for a crime involving
moral turpitude (CIMT) under 8 U.S.C. § 1182(a)(2) and thus does not bar his
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-60770 Document: 00512786151 Page: 2 Date Filed: 09/29/2014
No. 13-60770
eligibility for cancellation of removal. He forgoes any challenge to the
determinations that he was inadmissible and thus removable. See 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), (a)(6)(A)(i); Sharma v. Holder, 729 F.3d 407, 411 n.1 (5th
Cir. 2013).
Conviction of a CIMT under § 1182(a)(2) renders an alien ineligible for
cancellation of removal. § 1229b(b)(1)(C). Texas Penal Code § 38.02 does not
categorically describe offenses involving moral turpitude. See Nino v. Holder,
690 F.3d 691, 694-95 (5th Cir. 2012) (construing § 1229b and 8 U.S.C.
§ 1227(a)(2)’s deportability CIMT, which parallels the CIMT of § 1182(a)(2),
the provision that governs if removal is for inadmissibility). Therefore, a
modified categorical approach is used to determine whether Ortiz was
convicted under a part of § 38.02 that describes a CIMT. See id.
The record reflects that Ortiz was convicted of the offense described in
§ 38.02(b) as enhanced by subsection (d). A person violates § 38.02(b) by
intentionally giving a false or fictitious name, residential address, or birth date
to someone he knows to be a peace officer, who has lawfully arrested or
detained him or who has requested the information from a person believed to
have witnessed a crime. See § 38.02(b); Green v. State, 951 S.W.2d 3, 4 (Tex.
Crim. App. 1997). This offense involves dishonesty or lying and the
Government, to obtain a conviction, must prove that the defendant acted with
the intent to deceive. See Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir.
2002). Therefore, Ortiz’s offense of failure to identify while fugitive is a CIMT
for immigration purposes. See id. We thus conclude that the BIA did not err
in finding that the Texas conviction makes Ortiz ineligible for cancellation of
removal under § 1229b(b)(1). Consequently, the petition for review is
DENIED.
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