Overview on Texas crimes constituting an aggravated felony or crime involving moral turpitude

Table of Contents

I. INTRODUCTION
II. AGGRAVATED FELONIES
A. Definition of Aggravated Felony
B. Consequences of Aggravated Felony
C. Traditional Categorical Approach and Modified-Categorical Approach
D. Murder, Rape or Sexual Abuse of a Minor – 8 U.S.C. § 1101(a)(43)(A)
Murder
Rape
Sexual Abuse of a Minor
E. Illicit Trafficking in a Controlled Substance - 8 U.S.C. § 1101(a)(43)(B)
F. Illicit Trafficking in Firearms – 8 U.S.C. § 1101(a)(43)(C)
G. Money Laundering - 8 U.S.C. § 1101(a)(43)(D)
H. Explosives, Firearms and Arson – 8 U.S.C. § 1101(a)(43)(E)
I. Crimes of Violence (“COV”) – 8 U.S.C. § 1101(a)(43)(F)
Negligence and Reckless Conduct Insufficient
Force Against Another 13
J. Theft or Burglary – 8 U.S.C. § 1101(a)(43)(G)
K. Ransom Offenses – 8 U.S.C. § 1101(a)(43)(H)
L. Child Pornography Offenses – 8 U.S.C. § 1101(a)(43)(I)
M. RICO Offenses – 8 U.S.C. § 1101(a)(43)(J)
N. Prostitution and Slavery Offenses – 8 U.S.C. § 1101(a)(43)(K)
O. National Defense Offenses – 8 U.S.C. § 1101(a)(43)(L)
P. Fraud or Deceit Offenses – 8 U.S.C. § 1101(a)(43)(M)
Q. “Alien Smuggling” – 8 U.S.C. §1101(a)(43)(N)
R. Illegal Reentry after Deportation for Aggravated Felony – 8 U.S.C. §1101(a)(43)(O)
S. Passport Forgery – 8 U.S.C §1101(a)(43)(P)
T. Failure to Appear for Service of Sentence – 8 U.S.C. §1101(a)(43)(Q)
U. Commercial Bribery and Counterfeiting – 8 U.S.C. §1101(a)(43)(R)
V. Obstruction of Justice – 8 U.S.C. §1101(a)(43)(S)
W. Failure to Appear before a Court – 8 U.S.C. §1101(a)(43)(T)
X. Attempt or Conspiracy to Commit an Aggravated Felony – 8 U.S.C. §1101(a)(43)(U)
Y. Particularly Serous Crimes.
III. CRIMES INVOLVING MORAL TURPITUDE
A. Definition of Crimes Involving Moral Turpitude
B. Categorical Approach
C. Modified Categorical Approach
IV. TEXAS SPECIFIC CRIMES – CRIMES INVOLVING MORAL TURPITUDE
A. Offenses Against the Person
B. Offenses Against the Family
C. Offenses Against Property
V. OFFENSES AGAINST PUBLIC ADMINISTRATION
A. Obstructing Governmental Operations
B. Offenses Against Public Order and Decency
C. Offenses Against Public Health, Safety, and Morals
D. Intoxication and Alcoholic Beverage Offenses
E. Firework Offenses

 

I. Introduction

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), which limited petition-for-review jurisdiction for individuals removable based on enumerated crimes. See 8 U.S.C. § 1252(a)(2)(C) (2004) (permanent rules); IIRIRA section 309(c)(4)(G) (transitional rules).

In May 2005, Congress enacted the REAL ID Act of 2005, Pub. L. No. 109- 13, 119 Stat. 231 (2005), amending the Immigration and Nationality Act (“INA”) to expand the scope of direct judicial review over petitions for review brought by individuals removable based on enumerated crimes, and to limit the availability of habeas corpus relief over challenges to final orders of removal, deportation, or exclusion.

A noncitizen convicted of violating a Texas state criminal statute is subject to a variety of immigration penalties, including deportation from the United States. This outline focuses on two such deportation-proceedings-invoking offenses (DPIOs) established by federal law: aggravated felonies and crimes involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(iii) (2008) and § 1227(a)(2)(A)(i) (2008).

II. Agravated Felonies

A. Definition of Aggravated Felony

‘Aggravated felony’ is defined by 8 U.S.C. § 1101(a)(43)(F) as including a ‘crime of violence . . . for which the term of imprisonment [is] at least one year.’”).

At its infancy, the definition of aggravated felony included a short list of crimes largely consisting of drug and firearm trafficking and murder. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690 § 7342, 102 Stat. 4181, 4469–70 (1988) (codified as amended at 8 U.S.C. § 1101(a)(43) (1988)) (“The term ‘aggravated felony’ means murder, any drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code, or any illicit trafficking in any firearms or destructive devices as defined in section 921 of such title, or any attempt or conspiracy to commit any such act, committed within the United States.”). The definition, however, has expanded through the years. See 8 U.S.C. § 1101(a)(43)(A)–(U) (2006) (stating the aggravated felony definition that includes twenty-one subsections that potentially describe hundreds of offenses).

Each crime enumerated in 8 U.S.C. § 1101(a)(43) is an aggravated felony irrespective of whether it violates federal, state, or foreign law. Torres v. Lynch, 578 U.S. 452, 460-62 (2016). See also Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018) (“The INA defines ‘aggravated felony’ by listing numerous offenses and types of offenses, often with cross-references to federal criminal statutes.”).

The Fifth Circuit court has upheld the retroactive application of IIRIRA’s expanded definition of aggravated felony. See Betancourt-Ramirez v. Gonzales, 165 Fed. Appx. 369, 370 (5th Cir. 2006) (affirming that Congress has the authority to make past criminal activity a new ground for deportation, even if the activity was not considered criminal or did not result in a conviction at the time it occurred); see also Garrido-Morato v. Gonzales, 485 F.3d 319, 320 (5th Cir. 2007); Flores-Garza v. Reno, 369 F. Supp. 2d 894 (S.D. Tex. 2005); Lucas v. Lynch, 823 F.3d 1028 (5th Cir. 2016).

B. Consequences of Aggravated Felony

“Any alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii) (2008). An applicant is removable if convicted of an aggravated felony at any time after admission. See Torres, 578 U.S. at 454 (noncitizen convicted of an aggravated felony after entering the United States is deportable, ineligible for certain discretionary relief, and subject to expedited removal); see also Rodriguez Gonzalez v. Garland, 61 F.4th 467 (5th Cir. 2023) (an “alien who is convicted of an aggravated felony at any time after admission is deportable.”); Garcia v. Holder, 756 F.3d 839 (5th Cir. 2014) (affirming that a conviction for auto burglary constituted an aggravated felony, rendering the noncitizen ineligible for cancellation of removal).

Aggravated felons are also disqualified from many forms of relief including asylum, voluntary departure, and cancellation of removal (although some noncitizens may remain eligible for § 212(c) relief). See Torres, 578 U.S. at 454. See also Rodriguez Gonzalez, 61 F.4th at 467 (“In addition to being removable for an aggravated felony conviction, an alien is ineligible for asylum or withholding of removal, and subject, except in instances inapplicable here, to mandatory denial of withholding of removal under the CAT if he has a prior conviction for “a particularly serious crime.”).

Although a noncitizen previously removed for having been convicted of an aggravated felony is permanently inadmissible under 8 U.S.C. § 1182(a)(9)(A)(i), absent consent of the Attorney General, there is no independent ground of inadmissibility for having been convicted of an aggravated felony.

C. Traditional Categorical Approach and Modified-Categorical Approach

“When the Government alleges that a state conviction qualifies as an ‘aggravated felony’ under the INA, the Fifth Circuit generally employ a “categorical approach” to determine whether the state offense is comparable to an offense listed in the INA.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). The reason is that the INA asks what offense the noncitizen was “convicted” of, 8 U.S.C. § 1227(a)(2)(A)(iii), not what acts he committed. “[C]onviction” is the relevant statutory hook.” Id. at 191. A state offense will count as a § 1101(a)(43) aggravated felony even if it lacks an interstate commerce element, but corresponds to a federal offense in all other ways. Torres, 578 U.S. at 454 (“[T]he absence of such a jurisdictional element is immaterial: A state crime of that kind is an aggravated felony.”); see also Nieto Hernandez v. Holder, 592 F.3d 681 (5th Cir. 2009) (“Section 1101(a)(43)’s penultimate sentence plainly evidences Congress’s intent that an offense constitute an aggravated felony under § 1101(a)(43)(E) regardless of whether the offense falls within the jurisdiction of the states or the federal government”).

The categorical approach looks only at the elements of the prior offense and not at the particular conduct underlying the conviction for that offense, comparing the elements of that offense to the elements of the generic definition. Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990). When comparing the elements of the previous offense with the elements of the triggering offense, the most benign form of the previous offense is used. Moncrieffe v. Holder, 569 U.S. at 1684. If the elements are “narrower than or coterminous with the generic meaning,” then the court will affirm application of the enhancement. Hernandez, 592 F.3d at 681.

The modified categorical approach, on the other hand, “applies to ‘state statutes that contain several different crimes ....’ ” because the state statute is divisible. See Mellouli v. Lynch, ––– U.S. ––––, 135 S.Ct. 1980, 1986 n.4, 192 L.Ed.2d 60 (2015) (quoting Moncrieffe, 133 S.Ct. at 1684); see also Spaho, 837 F.3d at 1177, 2016 WL 4978352, at *2 (applying the modified categorical approach to determine whether a state conviction constitutes “illicit trafficking in a controlled substance”).

D. Murder, Rape or Sexual Abuse of a Minor – 8 U.S.C. § 1101(a)(43)(A)

8 U.S.C. § 1101(a)(43)(A) Section 1101(a)(43)(A) defines “aggravated felony” to include “murder, rape or sexual abuse of a minor” but does not set forth the elements of these offenses. Because the elements of the offenses listed in 8 U.S.C.A. § 1101(a)(43) are not specified, their elements are determined by using the categorical approach discussed above.

Murder

The Fifth Circuit has not made a specific ruling as to the definition of murder should be interpreted in the context of the INA’s aggravated felony provision. To interpret how this may be reviewed, one must first look under the relevant state statue. An example statute is the Texas Penal Code § 19.02(b), which provides that someone committed the offense if he:

“(3) commits or attempts to commit a felony, other than ... manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.”

By comparison, the Model Penal Code defines murder as including homicides “committed recklessly under circumstances manifesting extreme indifference to the value of human life,” and it presumes such recklessness and indifference if the homicide occurs during the commission, attempted commission, or flight from committing various enumerated felonies. Model Penal Code § 210.2(1)(b); see also 2 Wayne R. Lafave, Substantive Criminal Law § 14.5(b) (3d ed. 2017) (discussing approaches to defining murder); see also Felony-Murder Rule, Black's Law Dictionary (10th ed. 2014) (defining the rule as “if a person dies during the course of and in furtherance of a specified type of felony—even in immediate flight from the scene ... the death is considered a murder regardless of intent” and explaining that “Octoberost states restrict this rule to inherently dangerous felonies such as rape, arson, robbery, and burglary”).

There have been multiple cases, however, where the Fifth Circuit affirmed the judgment of the lower court’s interpretation of such comparisons between the statue statute of murder and the generic contemporary meaning of the same, noting that because there has not been a firm ruling on the matter, a district court’s interpretation of what qualified as aggravated murder in those cases cannot be considered a plain error. See United States v. Rubio-Sorto, 760 Fed. Appx. 258, 260 (5th Cir. 2019) (affirming the district court’s interpretation, noting that the court does “not ordinarily do not find plain error where there is an absence of authority on point”); United States v. Quinonez-Saa, 741 Fed. Appx. 973, 976 (5th Cir. 2018) (“Given the lack of controlling precedent, we conclude that any error by the district court was not plain because…the relevant sources indicate that whether Texas felony murder comports with the generic definition is “subject to reasonable dispute.”).

Rape

The Fifth Circuit has emphasized that the INA does not explicitly define “rape,” nor has the Board of Immigration Appeals (the “BIA”) provided a definition. Consequently, the court applies the term’s “commonly understood legal meaning,” which is derived from modern and generic definitions rather than outdated common law interpretations. Perez-Gonzalez v. Holder, 667 F.3d 622 (2012). The court in Perez-Gonzalez consulted sources such as the Model Penal Code, legal treatises, and dictionaries to ascertain the generic meaning of the term, noting that the applicable state statute was broader than the general meaning of the term “rape” as understood in 1996, when “rape” was added to § 1101(a)(43(A). More specifically, the court reasoned that the Montana statute under which the noncitizen was convicted, which criminalized any nonconsensual penetration (including penile, digital, or mechanical), did not necessarily establish that the noncitizen committed “rape” as understood under the INA, and therefore did not constitute an “aggravated felony” under the INA. Id. This decision underscores the court's reliance on a narrower, generic definition of rape that excludes certain forms of nonconsensual sexual conduct.

Sexual Abuse of a Minor

The Fifth Circuit’s generic definition of “sexual abuse of a minor” is conduct that (1) involves a child, (2) is sexual in nature, and (3) is abusive. Shroff v. Sessions, 890 F.3d 542, 543 (5th Cir. 2018). The Supreme Court has also defined the generic meaning of “minor” as requiring “that the victim be younger than 16.” Esquivel-Quintana v. Sessions, 581 U.S. 385, 390, 137 S. Ct. 1562, 1568, 198 L. Ed. 2d 22 (2017). Additionally, the Fifth Circuit has adopted a “per se rule that gratifying or arousing one’s sexual desires in the presence of a child is abusive because it involves taking undue or unfair advantage of the minor.” Contreras v. Holder, 754 F.3d 286, 294–95 (5th Cir. 2014) (holding that a state statute criminalizing carnal knowledge of a child constitutes “sexual abuse of a minor”); see also United States v. Rivas, 836 F.3d 514, 515 (5th Cir. 2016) (same for state statute prohibiting “sexual conduct” when victim is between thirteen and sixteen years of age).

The Fifth Circuit has also made it clear that the generic definition of “sexual abuse of a minor” does not require an “age differential” between the victim and the perpetrator (i.e. that the victim and the perpetrator need to be a certain number of years of age apart, regardless of whether the victim was younger than 16 years old). See United States v. Vazquez-Alba, 124 F.4th 373, 378 (5th Cir. 2024), cert. denied, 145 S. Ct. 1975, 221 L. Ed. 2d 746 (2025) (rejecting the argument that a Texas statute is not a categorical match to the generic sexual abuse of a minor because the generic offense requires an “age differential”); United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (holding that the generic offense does not contain an age differential “because the definitions of ‘sexual abuse of a minor’ in legal and other well-accepted dictionaries do not include such an age-differential requirement.”), abrogated on other grounds by Esquivel-Quintana v. Sessions, 581 U.S. 385, 392, 137 S. Ct. 1562, 1569, 198 L. Ed. 2d 22 (2017) (noting that the Supreme Court “did not abrogate Rodriguez’s holding that the generic crime of ‘sexual abuse of a minor’ does not require an age differential. That holding remains the law of this circuit.”).

However, the Fifth Circuit clarified that the generic federal definition of “sexual abuse of a minor” requires the victim to be less than 16 years old. See Esquivel–Quintana, 581 U.S. at 1572 (holding that “in the context of statutory rape offenses focused solely on the age of the participants, the generic federal definition of ‘sexual abuse of a minor’ ... requires the age of the victim to be less than 16); United States v. Sanchez-Arvizu, 893 F.3d 312, 315 (5th Cir. 2018), as revised (June 22, 2018) (holding that a Texas statute criminalizing sexual contact with a child younger than 17 was categorically broader than the federal definition, and thus a conviction under that statute did not qualify as “sexual abuse of a minor” under the INA.

E. Illicit Trafficking in a Controlled Substance - 8 U.S.C. § 1101(a)(43)(B)

Given 8 U.S.C. § 1101(a)(43)(B) lists “illicit trafficking in a controlled substance” to also include “a drug trafficking crime”, the Fifth Circuit has held that these are two distinct categories that each qualify as aggravated felonies, and a state crime can constitute “trafficking in a controlled substance” even if it does not qualify as a “drug trafficking crime” as defined in 18 U.S.C. § 924(c)(2). Flores-Larrazola v. Lynch, 840 F.3d 234, 238 (5th Cir. 2016), as revised (Oct. 25, 2016), as revised (Oct. 28, 2016). Section 924(c)(2) defines “drug trafficking crime” as “any felony punishable under the Controlled Substances Act (CSA)”.

Additionally, the Fifth Circuit has adopted the BIA’s interpretation of “illicit trafficking” to include “any state, federal, or qualified foreign felony conviction involving the unlawful trading or dealing in a controlled substance as defined by Federal law”. Id. This definition emphasizes the commercial nature of trafficking, requiring some form of trading or dealing, rather than mere possession or non-commercial conduct. Arce-Vences v. Mukasey, 512 F.3d 167, 171 (5th Cir. 2007). Therefore, to constitute a felony under § 1101(a)(43)(B), a prior state offense must either involve some sort of commercial dealing or be punishable as a federal felony under the Controlled Substances Act. Id. See also Lopez v. Gonzales, 549 U.S. 47, 127 S. Ct. 625, 166 L. Ed. 2d 462 (2006).

If the noncitizen was actually convicted of a drug trafficking crime under federal law, then the analysis is straightforward. If, however, the noncitizen is convicted of a state crime, then the court must determine whether the crime would be punishable as a felony drug trafficking crime under federal law. The offense must be punishable as a felony under federal law; the state’s designation of the crime as a felony is not sufficient to render it an aggravated felony. See Lopez, 549 U.S. at 60 (state felony possession offense was not an aggravated felony because the federal Controlled Substances Act punishes simple possession as a misdemeanor). If the state crime is not a categorical match to the generic federal offense, and the state statute is divisible, the court may apply the modified categorical approach to determine if the elements of the underlying offense of conviction are a match to the generic federal offense. See Flores-Larrazola, 840 F.3d at 238 (noting that because an Arkansas statute was divisible to create twelve different crimes, the court would apply the modified categorical approach).

F. Illicit Trafficking in Firearms – 8 U.S.C. § 1101(a)(43)(C)

An aggravated felony includes “illicit trafficking in firearms or destructive devices (as defined in section 921 of Title 18) or in explosive materials (as defined in section 841(c) of that title).” 8 U.S.C. § 1101(a)(43)(C).

While the INA does not explicitly define “illicit trafficking,” the Fifth Circuit has interpreted similar terms in other contexts to require unlawful trading or dealing in the specified items. For example, in Flores-Larrazola discussed above, the court adopted the BIA’s definition of “illicit trafficking in controlled substances” as involving “unlawful trading or dealing”. Id. at 234. This reasoning suggests that “illicit trafficking in firearms” similarly involves commercial activity or intent to distribute firearms unlawfully. See also Franco-Casasola v. Holder, 773 F.3d 33, 42 (5th Cir. 2014) (concluding that Franco-Casasola’s conviction for purchasing firearms intended for export without proper authorization constituted “illicit trafficking in firearms” because it involved commercial activity and violated the Arms Export Control Act.)

G. Money Laundering - 8 U.S.C. § 1101(a)(43)(D)

An aggravated felony includes “an offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000.” 8 U.S.C. § 1101(a)(43)(D). See also Maniar v. Garland, 998 F.3d 235, 239 (5th Cir. 2021) (noncitizen’s conviction to commit money laundering constituted an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(D); noncitizen pleaded guilty to conspiracy to commit money laundering and the funds involved well exceeded $10,000); Oyeniyi v. Cockrell, No. CIV.A. 3:02-CV-1369L, 2002 WL 31298855 (N.D. Tex. Oct. 7, 2002) (permanent resident alien convicted of conspiracy to commit money laundering committed money laundering offense involving funds in excess of $10,000, constituting an “aggravated felony” rendering alien removable, under removal provision of the Immigration and Nationality Act (INA), even though alien only personally received $7500 of proceeds, where alien participated in laundering approximately $41,000 by cashing two checks made payable to his business and distributing the money to his co-conspirators).

H. Explosives, Firearms and Arson – 8 U.S.C. § 1101(a)(43)(E)

An aggravated felony includes: an offense described in (i) section 842(h) or (i) of Title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses), (ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of Title 18 (relating to firearms offenses); or (iii) section 5861 of Title 26 (relating to firearms offenses). 8 U.S.C. § 1101(a)(43)(E); see also Torres v. Lynch, 578 U.S. 452 (2016) (conviction for arson under New York law qualified as an aggravated felony under the INA); United States v. Garza, 250 Fed. Appx. 67, 71 (5th Cir. 2007) (agreeing with the Ninth Circuit that interstate commerce is not an essential element in for an offense under §922(g)(1) to establish an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(ii), only ownership and possession of a handgun); Nieto Hernandez v. Holder, 592 F.3d 681, 684 (5th Cir. 2009) (upholding the BIA’s interpretation that for an offense to be “described in” 18 U.S.C. § 922(g)(1) for purposes of interpreting 8 U.S.C. § 1101(a)(43)(E)(ii), it only has to have the same substantive elements as § 922(g)(1); jurisdictional elements, such as § 922(g)(1)'s interstate commerce element, are irrelevant).

I. Crimes of Violence (“COV”) – 8 U.S.C. § 1101(a)(43)(F)

An aggravated felony includes a “crime of violence (as defined in section 16 of title 18 for which the term of imprisonment [is] at least one year.” [8 U.S.C.] § 1101(a)(43)(F). The specified statute, 18 U.S.C. § 16, provides the federal criminal code’s definition of “crime of violence.” Its two parts, often known as the “elements clause” and the “residual clause”, cover:

“(a) an offense that has as an element, the use, attempted use, or threatened use of physical force against the person or property of another, or

“(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018). See also 8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16. However, the residual clause in §16(b) was held unconstitutional for vagueness by the Supreme Court in Sessions v. Dimaya and cannot be the basis for an aggravated felony. See Dimaya, 138 S. Ct. at 1216; United States v. Godoy, 890 F.3d 531 (2018) (explicitly acknowledged that § 16(b) was unconstitutionally vague as used in the INA's criminal-removal provisions but noting that it did not bar the Court from referencing such section in interpreting the non-binding Sentencing Guidelines).

The “language [of the statute] requires [the court] to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to a petitioner’s crime.” Leocal v. Ashcroft, 543 U.S. 1, 6-7 (2004) (concluding that Florida DUI offenses were not crimes of violence under either § 16(a) or §16(b)); but see also United States v. Young, 809 Fed. Appx. 203, 206 (5th Cir. 2020) (noting that the court must look “solely at the statutory elements of” the offense, but “where the underlying statute of conviction describes separate offenses with distinct elements, the court applies the modified categorical approach to narrow the offense of conviction, consulting a limited class of documents to determine which offense formed the basis of the defendant's conviction.”).

1. Negligence and Reckless Conduct Insufficient

“The critical aspect of § 16(a) is that a crime of violence is one involving the use . . . of physical force against the person or property of another.” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (emphasis and internal quotation marks omitted). “[U]se requires active employment,” and “most naturally suggests a higher degree of intent than negligent or merely accidental conduct.” Id. (internal quotation marks omitted). Reckless conduct also fails to meet the mens rea requirement for a “crime of violence” under the Armed Career Criminal Act (ACCA), which shares identical operative language with the INA's force clause. Borden v. United States, 593 U.S. 420, 141 S. Ct. 1817, 210 L. Ed. 2d 63 (2021); see also United States v. Garner, 28 F.4th 678, 682 (5th Cir. 2022), citing Borden (stating that an offense committed negligently or recklessly does not categorically require “the use of physical force against the person of another” because “®he phrase ‘against another,’ when modifying the ‘use of force,’ demands that the perpetrator direct his action at, or target, another individual,” and reckless or negligent conduct lacks such a high level of intention.”).

Likewise, crimes only requiring negligent or reckless conduct do not meet the definition of a “crime of violence”. See United States v. Dominguez-Ochoa, 386 F.3d 639 (5th Cir. 2004) (holding that criminally negligent homicide under Texas law was not a “crime of violence” under the Sentencing Guidelines because it lacked the intentional “use, attempted use, or threatened use” of force).

Force Against Another

18 U.S.C. § 16 defines a crime of violence as one involving the use of force against another person or another’s property, and thus a crime that could involve the use of force against oneself or one’s own property does not meet the definition. See also Boden, 593 U.S. at 420 (stating that an offense committed negligently or recklessly does not categorically require “the use of physical force against the person of another” and therefore does not constitute a “crime of violence” under the INA's force clause).

The U.S. Supreme Court held that an offensive touching battery qualifies as a “misdemeanor crime of domestic violence” for the purpose of 18 U.S.C.A. § 922(g)(9). See U.S. v. Castleman, 572 U.S. 157, 134 S. Ct. 1405, 188 L. Ed. 2d 426 (2014). In footnote 4 of such decision, however, the Court stated that such a conviction should not qualify as a domestic violence conviction for immigration purposes or a crime of violence under 18 U.S.C.A. § 16. Id.

The Fifth Circuit has clarified that “physical force” as required by § 16(a) must rise to the level of “destructive or violent force”; mere “offensive touching” with a deadly weapon is insufficient. United States v. Dominguez, 479 F.3d 345, 348 (5th Cir.2007). See Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (holding, in a case arising under the Armed Career Criminal Act, that “in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person”). “However, the touching of an individual with a deadly weapon creates a sufficient threat of force to qualify as a crime of violence.” Dominguez, 479 F.3d at 348. The Fifth Circuit had previously ruled that a “crime of violence” does not encompass indirect acts, such as causing harm through subterfuge, only direct acts. See United States v. Villegas-Hernandez, 468 F.3d 874, 876 (5th Cir. 2006); United States v. Vargas–Duran, 356 F.3d 598, 606 (5th Cir.2004). However, the Fifth Circuit has recently overruled such decisions, holding that there was no valid distinction between direct and indirect force for purposes of identifying conviction as predicate “crime of violence.” United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018).

J. Theft or Burglary – 8 U.S.C. § 1101(a)(43)(G)

The definition of aggravated felony includes “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). The Supreme Court in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) recognized that several circuits and the BIA have adopted a generic definition of a theft offense as: “the taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” Id. at 184 (internal quotation marks and citation omitted, and the Fifth Circuit has formally adopted such interpretation. See Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir. 2007).

Further, the Supreme Court has stated that the “generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598, 110 S. Ct. 2143, 2158, 109 L. Ed. 2d 607 (1990); see also Murillo-Lopez, 444 F.3d 337 (5th Cir. 2006) (holding that burglary of a dwelling “includes the elements of generic burglary as stated in Taylor,” and added that “a building or other structure” includes “at a minimum, tents or vessels used for human habitation”).

To qualify, the statutes under which the conviction was made must align with the generic definition of theft or burglary noted above. See United States v. Juarez-Gonzalez, 451 Fed. Appx. 387, 389 (5th Cir. 2011) (holding that Washington State’s theft statute did not qualify as an aggravated felony because it encompassed conduct broader than the generic definition of theft, such as theft of services and theft by deception); United States v. Medina-Torres, 703 F.3d 770 (5th Cir. 2012) (holding that a Florida theft statute was broader than the generic definition because it did not require the requisite intent to deprive the owner of rights and benefits of ownership); Nolos v. Holder, 611 F.3d 279, 284 (5th Cir. 2010) (holding that a Nevada theft conviction constituted an aggravated felony because it matched the generic definition of theft and involved a term of imprisonment of at least one year); United States v. Reyes-Ochoa, 861 F.3d 582 (5th Cir. 2017) (holding that defendant's prior conviction of burglary in Virginia was not an aggravated felony under the INA because the Virginia statute allowed a burglary conviction for entering without breaking or concealing oneself after lawful entry, which are broader than the federal offense of generic burglary that requires an unlawful or unprivileged entry).

K. Ransom Offenses – 8 U.S.C. § 1101(a)(43)(H)

The definition of aggravated felony includes “an offense described in section 875, 876, 877, or 1202 of Title 18 (relating to the demand for or receipt of ransom).” 8 U.S.C. § 1101(a)(43)(H). In the Fifth Circuit, ransom has been defined as “a consideration paid or demanded for the release of someone or something from captivity” and “the ransom enhancement applies anytime a defendant demands money from a third party for a release of a victim, regardless of whether that money is already owed to the defendant.”. United States v. Fernandez, 770 F.3d 340, 343 (5th Cir. 2014); United States v. Pantoja-Rosales, 494 Fed. Appx. 453, 456 (5th Cir. 2012) (holding that a demand for payment qualifies as ransom even if the amount demanded is the same as the agreed-upon smuggling fee, provided the demand is made by someone other than the original smuggler).

L. Child Pornography Offenses – 8 U.S.C. § 1101(a)(43)(I)

The definition of aggravated felony includes “an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to child pornography).” 8 U.S.C. § 1101(a)(43)(I). These statutes criminalize conduct involving the production, possession, receipt and distribution of child pornography. For example, 18 U.S.C. 2251 criminalizes the use, persuasion, or coercion of a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct, provided the depictions are transported in interstate or foreign commerce.

M. RICO Offenses – 8 U.S.C. § 1101(a)(43)(J)

The definition of aggravated felony includes “an offense described in section 1962 of Title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed”. While the Fifth Circuit has not addressed this section in the INA context specifically, the opinion in Torres v. Lynch, includes dicta noting that Congress intended §1101(a)(43)(J) to include both state and foreign laws other than those statutes that only applied to less serious conduct than the federal racketeering offense, thus filtering out such statutes based on the seriousness of the conduct rather than the presence of an interstate commerce element. 578 U.S. 452, 463, 136 S. Ct. 1619, 1628, 194 L. Ed. 2d 737 (2016).

N. Prostitution and Slavery Offenses – 8 U.S.C. § 1101(a)(43)(K)

The definition of aggravated felony includes an offense that:

“(i)      relates to the owning, controlling, managing, or supervising of a prostitution business;

(ii)       is described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or

(iii)      is described in any of sections 1581-1585 or 1588-1591 of Title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons).”

8 U.S.C. § 1101(a)(43)(K).

O. National Defense Offenses – 8 U.S.C. § 1101(a)(43)(L)

The definition of aggravated felony includes an offense described in:

“(i)      section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of Title 18;

(ii)       section 3121 of Title 50 (relating to protecting the identity of undercover intelligence agents); or

(iii)      section 3121 of Title 50 (relating to protecting the identity of undercover agents).”

8 U.S.C. § 1101(a)(43)(L).

P. Fraud or Deceit Offenses – 8 U.S.C. § 1101(a)(43)(M)

The definition of aggravated felony includes an offense that:

“(i)      involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or

(ii)       is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.”

8 U.S.C. § 1101(a)(43)(M).

For offenses under § 1101(a)(43)(M)(i), which require a loss to the victim exceeding $10,000, the Fifth Circuit applies a circumstance-specific approach. This approach permits consideration of sentencing-related materials, such as restitution orders, to establish the loss amount. Nijhawan v. Holder, 557 U.S. 29, 36–38, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009); see also Hammerschmidt v. Garland, 54 F.4th 282, 288 (5th Cir. 2022) (noting that the loss to the victim is the “lodestar” for determining whether an offense qualifies as an aggravated felony). The court may rely on clear and convincing evidence, such as a restitution order, to establish the requisite loss amount. Further, a joint-and-several restitution order which exceeds the statutory $10,000 threshold will qualify as an “aggravated felony” even if the count to which the petitioner pled guilty involves a lesser amount. Id. See also James v. Gonzales, 464 F.3d 505, 510–12 (5th Cir. 2006), overruled on other grounds (holding that the restitution amount, which exceeded the threshold, and not the single count to which the petitioner pled, established his conviction of an aggravated felony); Martinez v. Mukasey, 508 F.3d 255, 259–60 (5th Cir. 2007), overruled on other grounds (holding that a conviction qualified as an aggravated felony where the petitioner was subject to a plea agreement holding her jointly and severally liable for $11,467.33 in restitution, despite being directed to pay only half).

Additionally, the Fifth Circuit has noted that Congress did not intend for § 1101(a)(43)(M)(i) to apply only to convictions under statutes that explicitly include monetary loss as an element. Instead, the amount of loss is determined from the record of conviction, even if it is not a formal element of the offense. Arguelles-Olivares v. Mukasey, 526 F.3d 171, 173 (5th Cir. 2008).

The Fifth Circuit has also held that an aggravated felony under § 1101(a)(43)(M)(i) could also include fraud as it relates to tax offenses, in which case the federal government is the “victim” within the meaning of such statute. Arguelles-Olivares v. Mukasey, 526 F.3d 171, 173 (5th Cir. 2008) (“We are persuaded, however, that Congress did not intend to single out tax evasion under 26 U.S.C. § 7201 for inclusion among aggravated felonies to the exclusion of all other tax felonies”).

Q. “Alien Smuggling” – 8 U.S.C. §1101(a)(43)(N)

The definition of aggravated felony includes “an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter”. 8 U.S.C. §1101(a)(43)(N).

The Fifth Circuit has affirmed the BIA’s ruling that §1182(a)(6)(E)(i) is not the statutory counterpart to §1101(a)(43)(N), because the two provisions use dissimilar language and do not describe equivalent categories of offenses – a conviction of a violation of §1324(a)(1)(A)(ii), standing alone, will not support a charge of inadmissibility under §1182(a)(6)(E)(i), because such a conviction concerns the transportation of aliens who were already in the United States. Leon-Medina v. Holder, 351 Fed. Appx. 881, 882 (5th Cir. 2009).

Further, the Fifth Circuit has interpreted the first parenthetical phrase in §1101(a)(43)(N) is a description of, not substantive restriction on, the statutory cross references that precedes it, and therefore transporting noncitizens already in the United States would qualify as an aggravated felony under §1101(a)(43)(N), despite the fact that no national lines were crossed. Ruiz-Romero v. Reno, 205 F.3d 837, 840 (5th Cir. 2000); see also United States v. Monjaras-Castaneda, 190 F.3d 326, 330 (5th Cir. 1999) (holding that transporting aliens within the United States a violation under §1101(a)(43)(N) for sentence enhancement purposes).

R. Illegal Reentry after Deportation for Aggravated Felony – 8 U.S.C. §1101(a)(43)(O)

The definition of aggravated felony includes “an offense described in section 1325(a) [improper entry by an alien] or 1326 [reentry of removed aliens] of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph”. 8 U.S.C. §1101(a)(43)(O).

Other sections of the statute separately provide that a noncitizen previously removed for having been convicted of an aggravated felony is permanently inadmissible. See 8 U.S.C. § 1182(a)(9)(A)(i). This inadmissibility is to remain in place unless “the Attorney General has consented to the alien’s reapplying for admission.” Id. §1182(a)(9)(A)(iii). See United States v. Gamboa-Garcia, 620 F.3d 546, 549 (5th Cir. 2010) (upholding an illegal reentry conviction where petitioner pled guilty to the prior aggravated felony conviction); United States v. Huerta-Rodriguez, 64 F.4th 270, 278 (5th Cir. 2023) (holding that a past illegal-reentry conviction under § 1326(b)(2) as an aggravated felony regardless of the present status of the predicate conviction).

S. Passport Forgery – 8 U.S.C §1101(a)(43)(P)

The definition of aggravated felony includes “an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of Title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter.” 8 U.S.C §1101(a)(43)(P). The Fifth Circuit has not specifically addressed §1101(a)(43)(P), however it has noted in dicta that offenses under this section should be analyzed under the circumstance specific approach, similar to fraud and deceit offenses under §1101(a)(43)(M). Nijhawan v. Holder, 557 U.S. 29, 129 S. Ct. 2294, 2296, 174 L. Ed. 2d 22 (2009) (noting §1101(a)(43)(P) is an offense that “almost certainly refers to specific circumstances”).

T. Failure to Appear for Service of Sentence – 8 U.S.C. §1101(a)(43)(Q)

The definition of aggravated felony includes “an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more.” 8 U.S.C. §1101(a)(43)(Q). The Fifth Circuit has not specifically addressed §1101(a)(43)(Q), but its general approach to interpreting aggravated felony provisions under the INA would apply.

A district court has addressed this section, however, and has reiterated that for an offense to qualify under §1101(a)(43)(Q), it must be a failure to appear for a sentencing, and a conviction for failure to appear to a trial where the defendant has not yet been convicted of the underlying offense was insufficient. United States v. Vega-Sanchez, No. C.A. C-09-172, 2010 WL 2232832, at *4 (S.D. Tex. June 1, 2010).

U. Commercial Bribery and Counterfeiting – 8 U.S.C. §1101(a)(43)(R)

The definition of aggravated felony includes “an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year.” 8 U.S.C. §1101(a)(43)(R).

While the Fifth Circuit has adopted the generic definition of forgery established in the Model Penal Code, which does not include possessory offenses, but rather requires an affirmative act of making or altering a writing, the Fifth Circuit has held that §1101(a)(43)(R) only requires that the offense relate to forgery. United States v. Villafana, 577 Fed. Appx. 248, 252 (5th Cir. 2014) (holding that possession of a forged instrument with intent to negotiate it or otherwise cause harm relates to forgery); see also United States v. Martinez-Valdez, 419 Fed. Appx. 523, 525 (5th Cir. 2011) (upholding a sentencing enhancement of a non-citizen’s forgery conviction for the possession of a non-authentic permanent resident card, noting that this “rests at the heartland of an ‘offense relating to ... forgery.’”).

V. Obstruction of Justice – 8 U.S.C. §1101(a)(43)(S)

The definition of aggravated felony includes “an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year.” 8 U.S.C. §1101(a)(43)(S). While the Fifth Circuit has not defined the phrase “obstruction of justice”, it has used the BIA’s construction of such phrase to be any offense punishable under any of the provisions of 18 U.S.C. §§ 1501-1521. See United States v. Gamboa-Garcia, 620 F.3d 546, 548 (5th Cir. 2010); Alwan v. Ashcroft, 388 F.3d 507, 514 (5th Cir. 2004); Orellana v. Garland, 117 F.4th 679, 685 (5th Cir. 2024). The obstruction of justice offenses listed in 18 U.S.C. §§ 1501-1521 have as elements “(1) ‘either active interference with proceedings of a tribunal or investigation, or action or threat of action against those who would cooperate in the process of justice,’ and (2) a ‘specific intent to interfere with the process of justice.’” Id.

Conduct may relate to the obstruction of justice, for purpose of determining whether a noncitizen’s state conviction is for an aggravated felony relating to the obstruction of justice under the INA, even if there is no pending investigation concerning the underlying felony. Pugin v. Garland, 599 U.S. 600, 143 S. Ct. 1833, 216 L. Ed. 2d 572 (2023); see also Orellana v. Garland, 117 F.4th 679 (5th Cir. 2024); Alwan v. Ashcroft, 388 F.3d 507, 514 (5th Cir. 2004) (holding that a petitioner’s knowledge that his refusal to testify would “impede the due administration of justice” was sufficient to show specific intent to obstruct justice for the purposes of 8 U.S.C. § 1101(a)(43)(S)).

W. Failure to Appear before a Court – 8 U.S.C. §1101(a)(43)(T)

The definition of aggravated felony includes “an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed.” 8 U.S.C. §1101(a)(43)(T). The Fifth Circuit has not specifically addressed §1101(a)(43)(T), but its general approach to interpreting aggravated felony provisions under the INA would apply.

X. Attempt or Conspiracy to Commit an Aggravated Felony – 8 U.S.C. §1101(a)(43)(U)

The definition of aggravated felony includes “an attempt or conspiracy to commit an offense described in [8 U.S.C. §1101(a)(43)]”. 8 U.S.C. §1101(a)(43)(U). see also Onenese v. Barr, 800 Fed. Appx. 254, 255 (5th Cir. 2020) (affirming conviction for conspiracy to commit offenses involving fraud or deceit under 8 U.S.C. §1101(a)(43)(M)(i)).

Y. Particularly Serous Crimes.

Section 241 of the INA provides an exception to removal when a noncitizen’s life or freedom would be jeopardized for any of the reasons set forth in 8 U.S.C. § 1231(b)(3)(A). This exception, however, does not apply to an alien “having been convicted by a final judgment of a particularly serious crime [who] is a danger to the community of the United States.” Id. at § 1231(b)(3)(B)(ii). The Fifth Circuit has agreed with many other federal circuits that while a “particularly serious crime” was not limited to aggravated felonies, aggravated felonies were per se particularly serious crimes. See Vetcher v. Barr, 953 F.3d 361, 368 (5th Cir. 2020); Martins v. I.N.S., 972 F.2d 657, 660 (5th Cir. 1992) (stating that an aggravated felony conviction constitutes a conviction for a particularly serious crime).

III. CRIMES INVOLVING MORAL TURPITUDE

Under 8 U.S.C. § 1227(a)(2)(A), any alien who “is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission and is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(i). Similarly, “any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(ii).

A. Definition of Crimes Involving Moral Turpitude

Notably, the Immigration and Nationality Act “does not define the term moral turpitude and legislative history does not reveal congressional intent regarding which crimes are turpitudinous. Instead, Congress left the interpretation of this provision to the BIA and interpretation of its application to state and federal laws to the federal courts.” Diaz Esparza v. Garland, 23 F. 4th 563, 566 (5th Cir. 2022).  However, the BIA has adopted the following definition:

“Conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.” Id.

In other words, “the BIA has observed that ‘moral turpitude is intrinsic to an offense that necessarily involves ‘reprehensible conduct’ committed with some form of ‘scienter,’ such as specific intent, knowledge, willfulness, or recklessness.” Id; see also Nino v. Holder, 690 F.3d 691, 695 (5th Cir. 2012) (“To involve moral turpitude, a crime requires two essential elements: reprehensible conduct and a culpable mental state.”); Matter of Louissaint, 24 I. & N. Dec. 754, 756-57 (BIA 2009).

The BIA has found certain acts to be “morally reprehensible and intrinsically wrong,” even, in some cases, where there is no “explicit element of evil intent.” Such crimes include: “(1) murder, (2) rape, (3) robbery, (4) kidnaping, (5) voluntary manslaughter, (6) some involuntary manslaughter offenses, (7) aggravated assault, (8) mayhem, (9) theft offenses, (10) spousal abuse, (11) child abuse, and (12) incest.” Orosco v. Holder, 2010 WL 3452814 at *4 (5th Cir. Sep. 3, 2010) (citing In re Lopez Meza, 22 I. &. N. Dec. 1188, 1193 (BIA 1999)). Further, for crimes in which “fraud or deception” is an element, the BIA typically deems these crimes to be CIMTs. Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007).

For an assault statute to be considered a CIMT, it must generally contain both (1) a scienter element requiring evil intent, depraved or vicious motive, or corrupt mind’ and (2) a conduct element requiring a meaningful level of harm, which must be more than mere offensive touching. Diaz-Esparza v. Garland, 23 F. 4^th 563, 569 (5th Cir. 2022). Notably, both elements “are critical to the CIMT inquiry ‘[b]ecause the term assault captures a broad spectrum of misconduct, [including] relatively minor offenses, e.g., simple assault.’ Thus, the BIA has determined that ‘in the context of assault crimes, . . . as the level of conscious behavior decreases, i.e., from intentional to reckless conduct, more serious resulting harm is required in order to find that the crime involves moral turpitude.’” Id.

B. Categorical Approach

When analyzing whether a given crime satisfies the BIA’s definition of a CIMT, the Fifth Circuit employes a “categorical approach.” Diaz Esparza v. Garland, 23 F. 4^th at 563. When determining whether a conviction for a State or Federal offense is a crime involving moral turpitude, the BIA will examine the State or Federal statute defining the crime of conviction and see if it fits within the generic definition of a crime involving moral turpitude.” Matter of Silva-Trevino III, 26 I. & N. Dec. 826 (BIA 2016). In other words, in determining whether a crime is a CIMT, “we ask whether the statutory elements of the crime of conviction match the elements of the generic offense which serves as the basis for removal.” Mathis v. United States, 579 U.S. 500, 504 (2016).

Under this approach, the court reads the statute as “the minimum criminal conduct necessary to sustain a conviction.” Id. Notably, this approach “focuses on the inherent nature of the crime, as defined in the statute . . . rather than the circumstances surrounding the particular transgression.” Id; see also Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007) (citing Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir. 2002) (In determining whether an offense is a CIMT, “we concentrate on the inherent nature of the crime, as defined in the statute concerned, rather than the circumstances surrounding the particular transgression.”). Thus, ‘“if the orbit of the statute may include offenses not inherently entailing moral turpitude,’ then the crime is not a crime involving moral turpitude.” Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006). Notably, some circuits utilize the “realistic probability test,” in determining whether a conviction is a crime involving moral turpitude, which requires courts to focus on the “minimum conduct that has a realistic probability of being prosecuted under the statute of conviction.” See Matter of Silva-Trevino III, 26 I. & N. Dec. at 831. The Fifth Circuit, however, utilizes the minimum reading approach, which finds an offense is a crime involving moral turpitude if the “minimum reading of the statute necessarily reaches only offenses involving moral turpitude.” Id.

C. Modified Categorical Approach

Typically, if a criminal statute encompasses both acts that do and do not involve moral turpitude, then the BIA cannot sustain a finding of deportability. Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir. 2002). However, “in cases where the statute of conviction includes some crimes that involve moral turpitude and some that do not, adjudicators must determine if the statute is divisible and thus susceptible to a modified categorical analysis.” Matter of Silva-Trevino III, 26 I. & N. Dec. at 833; see also Omagah v. Ashcroft, 288 F.3d at 260 (“For us to sustain a finding of deportability under such an overbroad statute, the law must be divided into discrete subsections that track the distinction between moral turpitude and less severe conduct.”). Notably, the BIA recognizes that a criminal statute is divisible only if: “(1) it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of ‘elements’, more than one combination of which could support a conviction and (2) at least one, but not all, of those listed offenses or combinations of disjunctive elements is a categorical match to the relevant generic standard.” Matter of Silva-Trevino III, 26 I. & N. Dec. at 833 (citing Matter of Chairez, 26 I. & N. Dec 819, 822 (BIA 2016) (citing Descamps v. United States, 133 S. Ct. 2276, 2281, 2283 (2013)). However, if the statute on lists different “means” of committing the crime, the statute is not divisible. See Mathis v. United States, 579 U.S. 500, 506 (2016). For example, if a statute criminalizes “intentionally, knowingly, or recklessly” committing the underlying act and punishes such acts in the same manner, the statute is not divisible. Id. at fn. 3.

Thus, if the statute is divisible into discrete subsections, we look at the alien’s record of conviction to determine whether he has been convicted of a subsection that qualifies as a crime involving moral turpitude. Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006).

IV. TEXAS SPECIFIC CRIMES – CRIMES INVOLVING MORAL TURPITUDE

Utilizing the information discussed above, the following list includes our analysis of whether crimes included in the Texas Penal Code are likely to be considered CIMTs. The analysis builds upon, and updates, similar projects conducted by immigration law scholars and organizations.[1] Such previous analysis was instrumental in our analysis of the current version of the Texas Penal Code.

The list is separated into nine categories, corresponding to the Texas Penal Code: (1) offenses against the person, (2) offenses against the family, (3) offenses against property, (4) offenses against public administration, (5) obstructing governmental operations, (6) offenses against public order and decency, (7) offenses against public health, safety, and morals, (8) intoxication and alcoholic beverage offenses, and (9) firework offenses.

The analysis is meant to be used as a guide. We highly recommend attorneys conduct case-specific research before moving forward with legal advice.

A. Offenses Against the Person

Criminal Homicide

Tex. Penal Code Ann. § 19.02 (Felony) – Murder

• • Murder is a CIMT.

Tex. Penal Code Ann. § 19.04 (Felony) – Involuntary Manslaughter (Recklessly)

• • Likely a CIMT because of the extreme harm that occurred. See Diaz Esparza v. Garland, 23 F. 4th 563 (5th Cir. 2022).  

Tex. Penal Code Ann. § 19.05 (Felony) – Criminally Negligent Homicide

• • Likely not a CIMT because it does not include at least a “reckless” culpable mental state. See Diaz Esparza v. Garland, 23 F. 4th 563 (5th Cir. 2022).  

Kidnapping, Unlawful Restraint, and Smuggling of Persons

Tex. Penal Code Ann. § 20.02(c)(1), (2) (Felony) – Unlawful Restraint

• • Likely a CIMT. “The respondent's conviction for unlawful restraint required a showing that he acted ‘knowingly’ and that he either restrained another person exposing that person to risk of serious bodily injury, or that he held another person in conditions of involuntary servitude.” In re Clinton Valentine Sharp, 2002 WL 32149034 (BIA 2002). The Texas statute is similar for a felony, requiring that a person “knowingly” restrain another “and recklessly exposes the victim to a substantial risk of injury.”

Tex. Penal Code Ann. § 20.02 (Misdemeanor) – Unlawful Restraint with a Sentence of Less than One Year

• • Likely not a CIMT. A misdemeanor charge does not require the restraint to expose a person to a risk of serious bodily injury. This makes it less likely to have a “vicious and corrupt” motive. Cf. In re Mioten, 2003 WL 23269873 (BIA 2003).

Tex. Penal Code Ann. § 20.03 (Felony) – Kidnapping

• • Likely a CIMT. The 5^th Circuit has held that a Louisiana statute for simple kidnapping was not a CIMT, however, that case “expressly include14 removal by a parent.” Hamadan v. INS, 98 F.3d 183, 187 (5th Cir. 1996).

Tex. Penal Code Ann. § 20.04 – Aggravated Kidnapping

• • Likely a CIMT. Aggravated Kidnapping requires intent to: (1) hold him for ransom or reward; (2) use him as a shield or hostage; (3) facilitate the commission of a felony or flight after the attempt or commission of a felony; (4) inflict bodily injury on him or violate or abuse him sexually; (5) terrorize him or a third person; or (6) interfere with the performance of any governmental or political function.” Such intentions are likely “morally reprehensible.”

Tex. Penal Code Ann. § 20.05(a) (Third-Degree Felony) – Smuggling of Persons

• • Likely a CIMT. “To convict a defendant of this offense requires proof that he designed a method to transport individuals so as to conceal them from law enforcement authorities. Such proof necessarily requires evidence of a fraudulent intent.” Fuentes-Cruz v. Gonzales, 489 F.3d 724, 726 (5th Cir. 2007).

• • However, may be able to argue that the statute is not a CIMT under the categorical approach because the crime punishes “assisting, guiding, or directing two individuals to enter or remain on agricultural land without the effective consent of the owner,” which may not be turpitudinous conduct.

Sexual Offenses

Tex. Penal Code Ann. § 21.07 – Public Lewdness

• • Likely not a CIMT because the statute is not divisible and punishes “de minimus touching.” Cisneros-Guererro v. Holder, 774 F.3d 1056 (5th Cir. 2014).

• • Note that Cisneros-Guererro v. Holder held that the statute was divisible, but this was before Mathis, which clarified that the focus is on “elements” of a crime, not alternative “means” of committing the crime. See Mathis v. United States, 579 U.S. at 506.

Tex. Penal Code § 21.08 – Indecent Exposure.

• • Likely a CIMT. See in re Serna, 2018 WL 3007184 (BIA 2018) (“[W]e conclude that Tex. Penal Code § 21.08 requires a lewd or lascivious intent within the meaning of Matter of Cortes Medina. The specific intent must be sexual in nature, and the reckless nature of the sexual exposure makes the conduct reprehensible for purposes of determining moral turpitude.”).

Tex. Penal Code Ann. § 21.11(a)(1) (Felony) – Indecency with a Child via Contact

• • Likely not a CIMT. See Matter of Silva Trevino III, 26 I. & N. at 835 (holding § 21.11(a)(1) does not categorically qualify as a crime involving moral turpitude because Texas law does not require knowledge of the age of the child).

Tex. Penal Code Ann. § 21.11(a)(2) (Felony) – Indecency with a Child via Exposure

• • Likely not a CIMT. See Matter of Silva Trevino III, 26 I. & N. at 835 (holding § 21.11(a)1() does not categorically qualify as a crime involving moral turpitude because Texas law does not require knowledge of the age of the child).

Assaultive Offenses

To define a CIMT, an assault statute must generally contain both (1) a ‘scienter element . . . requir[ing] . . . evil intent, depraved or vicious motive, or corrupt mind’ and (2) a conduct element requiring ‘a meaningful level of harm, which must be more than mere offensive touching.”  Both elements—“the state of mind and the level of harm’—are critical to the CIMT inquiry ‘[b]ecause the term assault captures a broad spectrum of misconduct, [including] relatively minor offenses, e.g., simple assault.’ Thus, the BIA has determined that “in the context of assault crimes, . . . as the level of conscious behavior decreases, i.e., from intentional to reckless conduct, more serious resulting harm is required in order to find that the crime involves moral turpitude.” See Diaz Esparza v. Garland, 23 F. 4th 563 (5th Cir. 2022).  

Tex. Penal Code Ann. § 22.01(a)(1) (Misdemeanor) – Assault

• • Not a CIMT because the statute is not divisible and punishes even “reckless” conduct. SeeGomez-Perez v. Lynch, 829 F.3d 323, at 326-27 (5th Cir. 2016).

Tex. Penal Code Ann. § 22.01(a)(2) (Misdemeanor) – Assault

• • Likely not a CIMT if the assault is only a “threat,” as there is not a “meaningful level of harm.” See Diaz Esparza v. Garland, 23 F. 4th 563 (5th Cir. 2022).  

Tex. Penal Code Ann. § 22.01(a)(3) (Misdemeanor) – Assault

• • Likely not a CIMT because the level of harm is not more than “mere offensive touching.” See Diaz Esparza v. Garland, 23 F. 4th 563 (5th Cir. 2022).  

Tex. Penal Code Ann. § 22.01(b), (b-1) (Felony) – Assault

• • Likely not a CIMT. See Matter of B-, 5 I&N Dec. 538 (BIA 1953) (finding simple assault on a peace officer was not a CIMT).

Tex. Penal Code Ann. § 22.02(a)(1) (Second-Degree Felony) –Aggravated Assault

• • Likely a CIMT. “Assault with a deadly weapon has long been regarded to involve moral turpitude.” Pichardo v. INS, 104 F.3d 756, 760 (5th Cir. 1997).

Tex. Penal Code Ann. § 22.02(a)(2) (First-Degree Felony) – Aggravated Assault

• • Likely a CIMT, as the statute requires intentional, knowing, or reckless conduct that “causes serious bodily injury to another person.” See Diaz Esparza v. Garland, 23 F. 4th 563 (5th Cir. 2022). A CIMT if the victim is a police officer. Matter of Danesh, A-23240808 (BIA 1988).

Tex. Penal Code Ann. § 22.011(a)(1) (Felony) – Sexual Assault with an Adult Victim

• • Likely a CIMT; “Rape” is commonly held to be a CIMT. Orosco v. Holder, 2010 WL 3452814 at *4 (5th Cir. Sep. 3, 2010) (citing In re Lopez Meza, 22 I. &. N. Dec. 1188, 1193 (BIA 1999)).

Tex. Penal Code Ann. § 22.011(a)(2) (Felony) – Sexual Assault with a Minor Victim

• • Likely a CIMT. “We note, however, that our decision does not reach crimes commonly known as ‘statutory rape.’ These are distinct crimes that require penetration of the child or similar conduct. Even though these offenses do not require a perpetrator to have knowledge of the age of the victim, we reserve the question whether they are CIMTs.” See Matter of Silva-Trevino III, 26 I. & N. Dec. at 831; see also In re Jimenez Cedillo 27 I. & N. Dec. 782, 787 (BIA 2020) (“It is well settled that statutory rape is a crime involving moral turpitude for immigration purposes.”).

Tex. Penal Code Ann. § 22.021 (Felony) – Aggravated Sexual Assault

• • Likely a CIMT. “Rape” is commonly held to be a CIMT. Orosco v. Holder, 2010 WL 3452814 at *4 (5th Cir. Sep. 3, 2010) (citing In re Lopez Meza, 22 I. &. N. Dec. 1188, 1193 (BIA 1999)).

Tex. Penal Code Ann. § 22.04 (Felony) – Injury to a Child, Elderly Individual, or Disabled Individual with a Sentence Greater than One Year – Child Abuse

• • Likely a CIMT because of the injury to the vulnerable person and a felony conviction requires the conduct to be done “intentionally, knowingly, or recklessly.”

Tex. Penal Code Ann. § 22.04 (Misdemeanor) – Injury to a Child, Elderly Individual, or Disabled Individual with a Sentence of Less than One Year – Child Abuse

• • Likely not a CIMT because the statute punishes criminal negligence, which is likely not sufficient for a CIMT. See, e.g., Nunez-Vasquez v. Barr, 965 F.3d 272, 283 (4th Cir. 2020) (finding negligence does not meet culpable mens rea required of CIMT).

Tex. Penal Code Ann. § 22.05(a) (Misdemeanor) – Deadly Conduct (Recklessly w/o firearm)

• • This is a CIMT. See Diaz Esparza v. Garland, 23 F. 4th 563 (5th Cir. 2022) (finding Tex. Penal Code Ann. § 22.05(a) is a CIMT).

Tex Penal Code Ann. § 22.05(b) (Felony) – Deadly Conduct (knowingly discharging firearm)

• • This is a CIMT. See Diaz Esparza v. Garland, 23 F. 4th 563 (5th Cir. 2022) (finding Tex. Penal Code Ann. § 22.05(a) is a CIMT).

Tex. Penal Code Ann. § 22.041(c) (Felony) – Abandoning or Endangering a Child

• • Likely not a CIMT. “Laws that authorize criminal punishment without proof that the offender intended or recklessly disregarded the potential consequences of his act do not define CIMTs.” Rodriguez-Castro v. Gonzales, 427 F.3d 316, 322 (5th Cir. 2005).

• • In the same vein, BIA decisions in which failure to support a child has been found to be a CIMT involve willful and intentional acts that leave a child in destitute circumstances.

Tex. Penal Code Ann. § 22.07(a)(1), (2) (Misdemeanor) – Terroristic Threat

• • Likely a CIMT. The BIA has held that “the communication of an intent to injure another person by use of violence involves sufficiently reprehensible conduct to constitute a crime involving moral turpitude.” In re Salad, 27 I. & N. Dec. 733, 738 (BIA 2020).

Tex. Penal Code Ann. § 22.07(a)(3) (Misdemeanor) – Terroristic Threat

• • Likely a CIMT. The BIA has held that “the communication of an intent to injure another person by use of violence involves sufficiently reprehensible conduct to constitute a crime involving moral turpitude.” In re Salad, 27 I. & N. Dec. 733, 738 (BIA 2020). (“We further hold that making threats ‘with purpose . . . to cause evacuation of a building, place of assembly, vehicle or facility of public transportation or otherwise to cause serious public inconvenience, or in a reckless disregard of the risk of causing such . . . inconvenience’ is reprehensible conduct.’”).

Tex. Penal Code Ann. § 22.07(a)(4) (Felony) – Terroristic Threat

• • “We further hold that making threats ‘with purpose . . . to cause evacuation of a building, place of assembly, vehicle or facility of public transportation or otherwise to cause serious public inconvenience, or in a reckless disregard of the risk of causing such . . . inconvenience’ is reprehensible conduct.’” In re Salad, 27 I. & N. Dec. 733, 738 (BIA 2020).

Tex. Penal Code Ann. § 22.07(a)(5) (Felony) – Terroristic Threat

• • “We conclude that the transmission of threats to commit a crime of violence, made either with the specific intent to ‘terrorize’ another or with a conscious disregard of a substantial and unjustifiable risk of terrorizing another, is reprehensible conduct.” In re Salad, 27 I. & N. Dec. 733, 738 (BIA 2020).

Tex. Penal Code Ann. § 22.07(a)(6) (Felony) – Terroristic Threat

• • “We further hold that making threats ‘with purpose . . . to cause evacuation of a building, place of assembly, vehicle or facility of public transportation or otherwise to cause serious public inconvenience, or in a reckless disregard of the risk of causing such . . . inconvenience’ is reprehensible conduct.’” In re Salad, 27 I. & N. Dec. 733, 738 (BIA 2020).

Tex. Penal Code Ann. § 22.08 (misdemeanor) – Aiding Suicide

• • This is likely a CIMT. A conviction requires an “intent to promote or assist the commission of a suicide by another.” Thus, there is an intent to cause substantial bodily injury. See Diaz Esparza v. Garland, 23 F. 4th 563 (5th Cir. 2022).  

Tex. Penal Code Ann. § 22.08 (State Jail Felony) – Aiding Suicide

• • This is likely a CIMT. A conviction requires an “intent to promote or assist the commission of a suicide by another,” resulting in “serious bodily injury.” Thus, there is an intent to cause serious bodily injury and serious bodily injury occurring. See Diaz Esparza v. Garland, 23 F. 4th at 566.  

Tex. Penal Code Ann. § 22.09 (Felony) – Tampering with Consumer Product

• • Likely a CIMT. The statute requires an “intent” to “tamper” with the consumer product. “Tamper” is further defined as altering or adding a foreign substance “to a consumer product to make it probable that the consumer product will cause serious bodily injury.” This will likely be viewed similarly to a deadly conduct charge, which is a CIMT. See Diaz Esparza v. Garland, 23 F. 4^th at 568-69.

Tex. Penal Code Ann. § 22.10 (misdemeanor) – Leaving a Child in a Vehicle

• • Likely not a CIMT. The statute is not divisible, and the least culpable conduct would likely not be against social morals (i.e. leaving a six-year-old child in the car for 6 minutes). Also, does not require leaving the child in “destitute circumstances.” Rodriguez-Castro v. Gonzales, 427 F.3d 316 (5th Cir. 2005).

B. Offenses Against the Family

Tex. Penal Code Ann. § 25.05 (Felony) – Criminal Non-Support

• • Not a CIMT. The crime does not require leaving the child in “destitute circumstances.” Rodriguez-Castro v. Gonzales, 427 F.3d 316 (5th Cir. 2005).

Tex. Penal Code Ann. § 25.07 (Misdemeanor) – Violating Protective Order

• • Likely a CIMT, because it requires “intentional[] or knowing[]” conduct, but only if the court finds that violating such protective order is “inherently base or vile.” See, e.g., In re Ventura, 2007 WL 3301629 (BIA 2007) (“A protective order is issued to protect a party from a person the court deems a threat to the protected party’s safety or well-being and a violation of such order could be considered to be inherently base and contrary to the duties owed between persons or to society in general.”).

Tex. Penal Code Ann. § 25.07 (Felony) – Violating Protective Order

• • Likely a CIMT because it requires “intentional[] or knowing[]” conduct, but only if the court finds that violating such protective order is “inherently base or vile.” See, e.g., In re Ventura, 2007 WL 3301629 (BIA 2007) (“A protective order is issued to protect a party from a person the court deems a threat to the protected party’s safety or well-being and a violation of such order could be considered to be inherently base and contrary to the duties owed between persons or to society in general.”).

C. Offenses Against Property

Arson, Criminal Mischief, and Other Property Damage or Destruction

Tex. Penal Code Ann. § 28.02(a) (Felony) – Arson

• • Likely a CIMT for all offenses. The crime requires is an “intent” to destroy or damage land, a building, habitation, or a vehicle. See Vukasanovic v. U.S. Atty. Gen, 439 F. 3d 1308, 1311 (11th Cir. 2006) (“The conduct prohibited by the statute—the willful destruction of a structure by fire or explosion without a lawful, legitimate purpose—evinces a certain baseness in the private and social duties a man owes to society and is ‘contrary to the accepted and customary rule of right and duty between man and man.’”).

Tex. Penal Code Ann. § 28.02(a-1) – Arson

• • Likely a CIMT because there is an “intent” to manufacture a controlled substance.

Tex. Penal Code Ann. § 28.02(a-2) – Arson

• • Arguably not a CIMT; requires intentionally starting a fire that “recklessly” causes damage or destroys a building belonging to another, or causes another person to suffer bodily injury or death. The least culpable conduct would be a small fire that causes smoke damage to a nearby building. This may not be turpitudinous conduct.

Tex. Penal Code Ann. § 28.03 (Felony) – Criminal Mischief

• • Likely not a CIMT. See In re Herndon-Melendez, 2006 WL 3088969, at *2 (BIA 2006) (“In particular, we observe that the terms of the statute at issue, Texas Penal Code § 28.03(b), do not require any malicious intent. Furthermore, the record of conviction fails to show with sufficient particularity that the offense of which the respondent stands convicted is inherently base and vile, as distinguished from acts which are wrong merely because prohibited by law.”). For example, a person can be charged for making “any inscriptions, slogans, drawings, or paintings, on the tangible property of the owner,” even if not done with an intent to “damage or destroy” the property.

Tex. Penal Code Ann. § 28.03 (Misdemeanor) – Criminal Mischief

• • See In re Herndon-Melendez, 2006 WL 3088969, at *2 (BIA 2006) (“In particular, we observe that the terms of the statute at issue, Texas Penal Code § 28.03(b), do not require any malicious intent. Furthermore, the record of conviction fails to show with sufficient particularity that the offense of which the respondent stands convicted is inherently base and vile, as distinguished from acts which are wrong merely because prohibited by law.”). For example, a person can be charged for making “any inscriptions, slogans, drawings, or paintings, on the tangible property of the owner,” even if not done with an intent to “damage or destroy” the property.

Tex. Penal Code Ann. § 28.04 (Misdemeanor) – Reckless Damage or Destruction

• • Likely not a CIMT. Similar to In re Herndon-Melendez, a charge under this statute does not require malicious intent, and the least culpable conduct is not “inherently base and vile.” See 2006 WL 3088969, at *2 (BIA 2006)

Tex. Penal Code Ann. § 28.08 (Felony) – Graffiti

• • May be a CIMT, if the court finds that the pecuniary loss causes the crime to be “inherently base and vile.” However, the BIA has only decided, for certain, that graffiti or vandalism is a CIMT when done for gang activity. See Matter of E.E. Hernandez, 26 I. & N. Dec. 397 (BIA 2014).

Tex. Penal Code Ann. § 28.08 (Misdemeanor) – Graffiti

• • Likely not a CIMT. The BIA held that graffiti was a CIMT, when completed for gang activity. See Matter of E.E. Hernandez, 26 I. & N. Dec. 397 (BIA 2014). However, this statute penalizes all graffiti, and a misdemeanor charge includes crimes causing a minimal amount of pecuniary loss (less than $2,500).

Robbery

Tex. Penal Code Ann. § 29.02 (Felony) – Robbery

• • Likely a CIMT. Robbery is “universally recognized as a crime involving moral turpitude.” Matter of Martin, 18 I. & N. Dec. 226,227 (BIA 1982).

Tex. Penal Code Ann. § 29.03 (Felony) – Aggravated Robbery

• • Likely a CIMT. Robbery is “universally recognized as a crime involving moral turpitude.” Matter of Martin, 18 I. & N. Dec. 226,227 (BIA 1982).

Burglary

Tex. Penal Code Ann. § 30.02 (Felony) – Burglary

• • Likely not a CIMT, but may depend on whether burglary is “inherently base and vile.” The BIA has found that burglary is “inherently base and vile,” regardless of the underlying felony. See In re Rojas, 2007 WL 4707500 at *1 (BIA 2007) (“An individual cannot form the culpable mental state and commit the culpable acts required for a conviction under § 30.02(a) of the Texas Penal Code without intentionally acting in a base, vile, or depraved manner.”).

• • However, a person may be able to argue that the crime is not a CIMT because the statute is indivisible under Mathis, and a person may be charged with burglary if they enter and “attempt[ing] to commit a felony.”  However, the statute does not require an intent to enter without the effective consent of the owner, and not all felonies are CIMTs.

Tex. Penal Code Ann. § 30.02 (State Jail Felony) – Burglary of a Building Other than a Habitation

• • Likely not a CIMT but may depend on whether burglary is “inherently base and vile.” The BIA has found that burglary is “inherently base and vile,” regardless of the underlying felony. See In re Rojas, 2007 WL 4707500 at *1 (BIA 2007) (“An individual cannot form the culpable mental state and commit the culpable acts required for a conviction under § 30.02(a) of the Texas Penal Code without intentionally acting in a base, vile, or depraved manner.”).

• • However, in Hernandez-Cruz v. Holder, the Ninth Circuit held that burglary not involving a residence is not a CIMT. See 651 F. 3d 1094, 1107 (9th Cir. 2011).

Tex. Penal Code Ann. § 30.04(d)(3) (Felony) – Burglary of a Vehicle w/ intent to commit a theft of prescription drugs

• • Likely a CIMT. See Pulido-Alatorre v. Holder, 2010 WL 2465083 at *2 (5th Cir. 2010) (“Applying the categorical approach, the BIA was reasonable in determining that petitioner’s crime is one involving moral turpitude. See Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982) (“Burglary with intent to commit theft has been found to be a crime involving moral turpitude.”).

Tex. Penal Code Ann. § 30.04 (Misdemeanor) – Burglary of a Vehicle

• • Likely a CIMT. See Pulido-Alatorre v. Holder, 2010 WL 2465083 at *2 (5th Cir. 2010) (“Applying the categorical approach, the BIA was reasonable in determining that petitioner’s crime [under § 30.04] is one involving moral turpitude.”).

• • Under Mathis, however, may be able to argue that the statute is not divisible and the categorical approach does not deem this a CIMT because not all felonies are CIMTs.

Tex. Penal Code Ann. § 30.05 (Misdemeanor) – Criminal Trespass

• • Likely not a CIMT. A conviction does not require “evil intent,” and does not require any damage done to the property.

Theft

Tex. Penal Code Ann. § 31.03 – Theft

• • Likely a CIM. “A theft offense is a crime involving moral turpitude if it involves a taking or exercise of control over another’s property without consent and with an intent to deprive the owner of his property permanently.” In re Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016).

Tex. Penal Code Ann. § 31.07 (Felony) – Unauthorized Use of a Vehicle

• • Likely not a CIMT because the crime does not require “an intent to deprive the owner of his property permanently.”

Tex. Penal Code Ann. § 31.11 (Misdemeanor) – Tampering with Identification Numbers

• • Likely a CIMT; for crimes in which “fraud or deception” is an element, the BIA typically deems these crimes to be CIMTs. Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007).

Fraud

Tex. Penal Code Ann. § 32.21 (Felony) – Forgery

• • Likely a CIMT; for crimes in which “fraud or deception” is an element, the BIA typically deems these crimes to be CIMTs. Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007); see also in re Sinju, 2008 WL 3861917, at *1 (BIA 2008).

Tex. Penal Code Ann. § 32.21 (Misdemeanor) – Forgery

• • Likely a CIMT; for crimes in which “fraud or deception” is an element, the BIA typically deems these crimes to be CIMTs. Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007); see also in re Sinju, 2008 WL 3861917, at *1 (BIA 2008).

Tex. Penal Code Ann § 32.23 – Trademark Counterfeiting

• • Likely a CIMT; for crimes in which “fraud or deception” is an element, the BIA typically deems these crimes to be CIMTs. Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007).

Tex. Penal Code Ann. § 32.24 – Stealing or Receiving Stolen Check

• • Likely a CIMT; “A theft offense is a crime involving moral turpitude if it involves a taking or exercise of control over another’s property without consent and with an intent to deprive the owner of his property permanently.” In re Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016).

Tex. Penal Code Ann. § 32.31 (Felony) – Credit Card Abuse with a Loss Greater than $10,000

• • Likely a CIMT; for crimes in which “fraud or deception” is an element, the BIA typically deems these crimes to be CIMTs. Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007); see also in re Aoun, 2004 WL 2952182, at *2 (BIA 2004).

Tex. Penal Code Ann. § 32.31 (Felony) – Credit Card Abuse with a Loss of Less than $10,000

• • Likely a CIMT; for crimes in which “fraud or deception” is an element, the BIA typically deems these crimes to be CIMTs. Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007); see also in re Aoun, 2004 WL 2952182, at *2 (BIA 2004).

Tex. Penal Code Ann. § 32.34 (Felony) – Fraudulent Transfer of a Motor Vehicle with a Loss Greater than $10,000

• • Likely a CIMT for the sections in which “fraud or deception” is an element, the BIA typically deems these crimes to be CIMTs. Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007).

Tex. Penal Code Ann. § 32.34 (Misdemeanor) –Fraudulent Transfer of a Motor Vehicle

• • Likely a CIMT. Crimes in which “fraud or deception” is an element, the BIA typically deems these crimes to be CIMTs. Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007).

Tex. Penal Code Ann. § 32.41 (Misdemeanor) – Issuing a Bad Check with a Loss Greater than $10,000

• • Likely a CIMT. While there is no “intent to defraud” as an element, it is likely a deceptive practice, given the knowledge requirement.  See Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007).

Tex. Penal Code Ann. § 32.41 (Misdemeanor) – Issuing a Bad Check with a Loss of Less than $10,000

• • Likely a CIMT. While there is no “intent to defraud” as an element, it is likely a deceptive practice, given the knowledge requirement.  See Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007).

Tex. Penal Code Ann. § 32.43 (Felony) – Commercial Bribery

• • Likely a CIMT. See Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982) (“Offering a bribe . . . is a crime involving moral turpitude, for a corrupt mind is an essential element of the offense.”).

Tex. Penal Code Ann. § 32.46 – Fraudulent Securing of Document Execution

• • Likely a CIMT, since the crime requires an “intent to defraud” another person. For crimes in which “fraud or deception” is an element, the BIA typically deems these crimes to be CIMTs. Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007).

Tex Penal Code Ann. § 32.47 – Fraudulent Destruction, Removal, or Concealment of Writing

• • Likely a CIMT; for crimes in which “fraud or deception” is an element, the BIA typically deems these crimes to be CIMTs. Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007).

Tex. Penal Code Ann. § 32.51(b) – Fraudulent Use or Possession of Identifying Information

• • Likely a CIMT; for crimes in which “fraud or deception” is an element, the BIA typically deems these crimes to be CIMTs. Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007).

Computer Crimes

Tex. Penal Code Ann. § 32A.04 (Felony) – Theft of Communication Service

• • Likely not a CIMT because the crime does not involve an intent to defraud another of the telecom service.

• • However, may be a CIMT if the BIA determines the crime is a “theft” offense. “A theft offense is a crime involving moral turpitude if it involves a taking or exercise of control over another’s property without consent and with an intent to deprive the owner of his property permanently.” In re Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016).

Tex. Penal Code Ann. § 32A.04 (Misdemeanor) – Theft of Communication Service

• • Likely not a CIMT because the crime does not involve an intent to permanently deprive another of the telecom service.

• • However, may be a CIMT if the BIA determines the crime is a “theft” offense. “A theft offense is a crime involving moral turpitude if it involves a taking or exercise of control over another’s property without consent and with an intent to deprive the owner of his property permanently.” In re Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016).

Tex. Penal Code Ann. § 33A.02 (Felony) – Unauthorized Use of Telecom Services

• • Likely not a CIMT because the crime does not involve an intent to permanently deprive another of the telecom service.

• • However, may be a CIMT if the BIA determines the crime is a “theft” offense. “A theft offense is a crime involving moral turpitude if it involves a taking or exercise of control over another’s property without consent and with an intent to deprive the owner of his property permanently.” In re Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016).

Tex. Penal Code Ann. § 33A.02 (Misdemeanor) – Unauthorized Use of Telecom Services

• • Likely not a CIMT because the crime does not involve an intent to permanently deprive another of the telecom service.

• • However, may be a CIMT if the BIA determines the crime is a “theft” offense. “A theft offense is a crime involving moral turpitude if it involves a taking or exercise of control over another’s property without consent and with an intent to deprive the owner of his property permanently.” In re Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016).

Tex. Penal Code Ann. § 33.02(a) – Breach of Computer Security

• • Likely not a CIMT.  The crime does not require an evil mind, and the least culpable conduct is likely not turpitudinous.

Tex. Penal Code Ann. § 33.02(b-1) (Felony) – Breach of Computer Security

• • This is likely a CIMT. The crime requires an intent to defraud the victim.  Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007).

Tex. Penal Code Ann. § 33.021 (Felony) – Online Solicitation of a Minor

• • The BIA has held that online solicitation of a minor is a CIMT. In re Jimenez-Cedillo, 27 I. & N. Dec. 782 (BIA 2020) (finding a violation of Maryland’s statute criminalizing online solicitation of a minor was a CIMT).

Tex. Penal Code Ann. § 33.022 – Electronic Access Interference

• • Likely not a CIMT; the least culpable offense does not require an “evil mind.”

Money Laundering

Tex. Penal Code Ann. § 34.02 (Felony) – Money Laundering with a Loss Greater than $10,000

Likely a CIMT. See Smalley v. Ashcroft, 354 F.3d 332 (5th Cir. 2003) (finding money laundering is a CIMT); see also Matter of Tejwani, 24 I&N Dec. 97 (BIA 2007) (finding violation of New York’s money laundering statute was a CIMT).

Tex. Penal Code Ann. § 34.02 (Felony) – Money Laundering with a Loss of Less than $10,000

• • Likely a CIMT. See Smalley v. Ashcroft, 354 F.3d 332 (5th Cir. 2003) (finding money laundering is a CIMT); see also Matter of Tejwani, 24 I&N Dec. 97 (BIA 2007) (finding violation of New York’s money laundering statute was a CIMT.

Insurance Fraud

Tex. Penal Code Ann. § 35.02 (Felony) – Insurance Fraud Loss Greater than $10,000

• • Likely a CIMT; for crimes in which “fraud or deception” is an element, the BIA typically deems these crimes to be CIMTs. Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007).

Tex. Penal Code Ann. § 35.02 (Misdemeanor) – Insurance Fraud Loss of Less than $10,000

• • Likely a CIMT; for crimes in which “fraud or deception” is an element, the BIA typically deems these crimes to be CIMTs. Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir. 2007).

V. Offenses Against Public Administration

Bribery

Tex. Penal Code Ann. § 36.02 (Felony) – Bribery

• • Likely a CIMT. See Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982) (“Offering a bribe . . . is a crime involving moral turpitude, for a corrupt mind is an essential element of the offense.”).

Tex. Penal Code Ann. § 37.02 (Misdemeanor) – Perjury with a Sentence of at Least One Year

• • Likely not a CIMT because there is no materiality requirement. See Matter of H-, 1 I. & N. Dec. 669 (B.I.A. 1943) (finding an offense is not a CIMT if it does not require materiality of falsehood).

Perjury

Tex. Penal Code Ann. § 37.03 (Felony) – Aggravated Perjury (materiality)

• • Likely a CIMT because there is a materiality requirement. See Matter of H-, 1 I. & N. Dec. 669 (B.I.A. 1943) (finding an offense is not a CIMT if it does not require materiality of falsehood). Additionally, there must be “an intent to deceive.”

Tex. Penal Code Ann. § 37.08 – False Report to Peace Officer

• • Likely a CIMT because there is an intent to deceive and a materiality requirement. Cf. Blanco v. Mukasey, 518 F.3d 714, 718–20 (9th Cir. 2008) (California’s false identification to a peace officer statute is not categorically a CIMT because it only requires knowing mens rea, not specific intent to defraud); see also Immigration Defense Project, Perjury, False Statement or Other Alleged Fraud Offenses (Jan. 2022)).

Tex. Penal Code Ann. § 38.02(a) (Misdemeanor) – Failure to Identify (refusal to give name to a peace officer)

• • Likely not a CIMT because there is no intent to defraud or deceive. See Blanco v. Mukasey, 518 F.3d at 715.

A. Obstructing Governmental Operations

Tex. Penal Code Ann. § 38.03 (misdemeanor) – Resisting Arrest

• • Likely not a CIMT. See Laryea v. Sessions, 871 F.3d 337, 343 at fn. 28 (noting “Those states that allow impeachment of witnesses with morally turpitudinous convictions generally find that resisting, fleeing, or evading arrest is not a CIMT.”).

Tex. Penal Code Ann. § 38.03(d) (Felony) – Resisting Arrest with a Deadly Weapon

• • Likely a CIMT, when a deadly weapon is in use. See in re Nunez-Montanez, 2008 WL 4222227 (BIA 2008) (implying that resisting arrest with a deadly weapon may cause resisting arrest to become a CIMT).

Tex. Penal Code Ann. § 38.04(a) (Misdemeanor) – Evading Arrest

• • Not a CIMT. See Laryea v. Sessions, 871 F.3d at 343 (“We hold that Texas Penal Code § 38.04, evading arrest or detention, is a divisible statute because its subparts articulate different crimes. Using the modified categorical approach, we find that Laryea was convicted of a Class A misdemeanor for fleeing from a lawful arrest, which is not a CIMT.”).

Tex. Penal Code Ann. § 38.04(b)(1)(A) (Felony)

• • Not a CIMT. See Laryea v. Sessions, 871 F.3d at 343 (“We hold that Texas Penal Code § 38.04, evading arrest or detention, is a divisible statute because its subparts articulate different crimes. Using the modified categorical approach, we find that Laryea was convicted of a Class A misdemeanor for fleeing from a lawful arrest, which is not a CIMT.”); See In re Torres-Varela, 23 I. & N. Dec. 78, 85 (BIA 2001) (“Multiple convictions for the same DUI offense, which individually is not a crime involving moral turpitude, do not, by themselves, aggregate into a conviction for a crime involving moral turpitude.”).

Tex. Penal Code Ann. § 38.04(b)(1)(B) (Felony) or § 38.04(b)(2)(A) (Felony) – Evading Arrest with a Vehicle

• • Likely a CIMT. See Pulido-Alatorre v. Holder, 2010 WL 2465083 at *2 (5th Cir. 2010) (holding evading arrest with a vehicle constitutes a CIMT).

Tex. Penal Code Ann. § 38.06 (Misdemeanor) – Escape

• • Likely not a CIMT. See Laryea v. Sessions, 871 F.3d at 343 (finding that “fleeing from a police officer, without more, does not rise to the level of moral turpitude”). However, this has never been brought before the BIA and is more extreme than evading arrest.

Tex. Penal Code Ann. § 38.06(d) or (e) (Felony) – Escape

• • Likely a CIMT; a felony conviction requires causing bodily injury or threats with a deadly weapon, which likely make the crime a CIMT. See in re Nunez-Montanez, 2008 WL 4222227 (BIA 2008) (implying that resisting arrest with a deadly weapon may cause resisting arrest to become a CIMT).

Tex. Penal Code Ann. § 38.10 (Felony) – Bail Jumping and Failure to Appear

• • Likely not a CIMT; likely does not arise to turpitudinous conduct and does not include an “evil intent.”

Tex. Penal Code Ann. § 38.10 (Misdemeanor) – Bail Jumping and Failure to Appear

• • Likely not a CIMT; likely does not arise to turpitudinous conduct and does not include an “evil intent.”

Tex. Penal Code Ann. § 38.17 (Misdemeanor) – Failure to Stop or Report Aggravated Sexual Assault of a Child

• • Arguably a CIMT if the court considers this leaving a child in “destitute circumstances.” Rodriguez-Castro v. Gonzales, 427 F.3d 316 (5th Cir. 2005).

B. Offenses Against Public Order and Decency

Disorderly Conduct and Related Offenses

Tex. Penal Code Ann. § 42.03 (misdemeanor) – Obstruction of a Highway

• • Likely not a CIMT. The statute criminalizes anyone intentionally, knowingly, or recklessly obstructing a highway or other passage, which is likely not an “inherently base or vile” act.

Tex. Penal Code Ann. § 42.03 (felony) – Obstruction of a Highway

• • May be a CIMT, but it will likely depend on whether obstructing an emergency vehicle or entry to a hospital is seen as an “inherently base or vile” act.

Tex. Penal Code Ann. § 42.07 (Class B Misdemeanor) – Harassment

• • Likely not a CIMT because, categorically, not all culpable conduct is a CIMT. For example, “annoying” a person is unlikely to be an “evil intent.”

Tex. Penal Code Ann. § 42.07 (Class A Misdemeanor) – Harassment

• • May be a CIMT because it punishes actions under subsections (a)(7)-(a)(8), depending on the underlying facts of the case.

Tex. Penal Code Ann. § 42.072 (Third-Degree Felony) – Stalking

• • Likely not a CIMT. Arguably, if someone is charged with making someone feel merely “annoyed, embarrassed, or offended,” the charge would not be a CIMT.

Tex. Penal Code Ann. § 42.072 (Second-Degree Felony) – Stalking

• • Likely not a CIMT. Arguably, if someone is charged with making someone feel merely “annoyed, embarrassed, or offended,” the charge would not be a CIMT. Arguably, if someone is charged with making someone feel merely “annoyed, embarrassed, or offended,” the charge would not be a CIMT. The second-degree felony charge merely means the actor has been charged with the same conduct twice. See in re Torres-Varela, 23 I. & N. Dec. 78, 85 (BIA 2001) (“Multiple convictions for the same DUI offense, which individually is not a crime involving moral turpitude, do not, by themselves, aggregate into a conviction for a crime involving moral turpitude.”).

Tex. Penal Code Ann. §§ 42.09 - 42.092 (Felony) – Cruelty to Animals (livestock and non-livestock)

• • Likely a CIMT because it requires killing or torturing an animal. See In re Ortega-Lopez, 27 I. & N. Dec 382, 391 (BIA 2018) (“In sum, sponsoring or exhibiting an animal in an animal fighting venture is contrary to the most basic moral standards that exist in our civilized society. This activity, which serves no utilitarian purpose, leads to the extreme suffering or death of the animals that are forced to fight for the base entertainment and enjoyment of the people involved.”).

Tex. Penal Code Ann. § 42.09 – 42.092 (Misdemeanor) – Cruelty to Animals (livestock and non-livestock)

• • Likely not a CIMT because it punishes merely overworking an animal, which is likely not contrary to society’s “basic moral standards.” See In re Ortega-Lopez, 27 I. & N. Dec 382, 391 (BIA 2018) (“In sum, sponsoring or exhibiting an animal in an animal fighting venture is contrary to the most basic moral standards that exist in our civilized society. This activity, which serves no utilitarian purpose, leads to the extreme suffering or death of the animals that are forced to fight for the base entertainment and enjoyment of the people involved.”).

Tex. Penal Code Ann. § 42.10 (Felony) – Dog Fighting

• • Likely a CIMT. See In re Ortega-Lopez, 27 I. & N. Dec 382, 391 (BIA 2018) (“In sum, sponsoring or exhibiting an animal in an animal fighting venture is contrary to the most basic moral standards that exist in our civilized society. This activity, which serves no utilitarian purpose, leads to the extreme suffering or death of the animals that are forced to fight for the base entertainment and enjoyment of the people involved.”).

Tex. Penal Code Ann. § 42.10 (Misdemeanor) – Dog Fighting

• • Likely not a CIMT because the statute punishes those that merely attend as a spectator an exhibition of dog fighting. Cf. In re Ortega-Lopez, 27 I. & N. Dec 382, 389 (BIA 2018) (“[W]e are not persuaded that one could ‘sponsor or exhibit an animal’ in an animal fighting venture by merely paying a fee to attend an animal fight or being a vendor at such an event.”).

Public Indecency

Tex. Penal Code Ann. § 43.02 (Misdemeanor) – Prostitution

• • Likely a CIMT. See Florentino-Francisco v. Lynch, (10th Cir. 2015) (“The BIA has long viewed prostitution-related crimes as morally turpitudinous.”).

Tex. Penal Code Ann. § 43.021 – Solicitation of Prostitution

• • Likely a CIMT. See Rohit v. Holder, 670 F.3d 1085, 1089-90 (9th Cir. 2012) (“Soliciting an act of prostitution is not significantly less base, vile, and depraved than engaging in an act of prostitution.”). Florentino-Francisco v. Lynch, 611 Fed. Appx. 936, 938(10th Cir. 2015) (“If prostitution is inherently base, vile, or depraved, so too is the attempt to engage a prostitute by solicitation.”).

Tex. Penal Code Ann. § 43.03 (Misdemeanor) – Promotion of Prostitution

• • Likely a CIMT. See Florentino-Francisco v. Lynch, (10th Cir. 2015) (“The BIA has long viewed prostitution-related crimes as morally turpitudinous.”); see Matter of A—, 5 I. & N. Dec. 546, 549 (BIA 1953) (“[T]he conducting of a brothel is a form of commercial vice involving the practice of immorality for hire, which is accompanied by an evil intent and involves moral turpitude.”).

Tex. Penal Code Ann. § 43.031 – Online Promotion of Prostitution

• • Likely a CIMT. See Florentino-Francisco v. Lynch, (10th Cir. 2015) (“The BIA has long viewed prostitution-related crimes as morally turpitudinous.”); see Matter of A—, 5 I. & N. Dec. 546, 549 (BIA 1953) (“[T]he conducting of a brothel is a form of commercial vice involving the practice of immorality for hire, which is accompanied by an evil intent and involves moral turpitude.”).

Tex. Penal Code Ann. § 43.04 – Aggravated Promotion of Prostitution

• • Likely a CIMT. See Florentino-Francisco v. Lynch, (10th Cir. 2015) (“The BIA has long viewed prostitution-related crimes as morally turpitudinous.”); see Matter of A—, 5 I. & N. Dec. 546, 549 (BIA 1953) (“[T]he conducting of a brothel is a form of commercial vice involving the practice of immorality for hire, which is accompanied by an evil intent and involves moral turpitude.”).

Tex. Penal Code Ann. § 43.041 – Aggravated Online Promotion of Prostitution

• • Likely a CIMT. See Florentino-Francisco v. Lynch, (10th Cir. 2015) (“The BIA has long viewed prostitution-related crimes as morally turpitudinous.”); see Matter of A—, 5 I. & N. Dec. 546, 549 (BIA 1953) (“[T]he conducting of a brothel is a form of commercial vice involving the practice of immorality for hire, which is accompanied by an evil intent and involves moral turpitude.”).

Tex. Penal Code Ann. § 43.22 – Obscene Display or Distribution

• • Likely not a CIMT; the statute only requires that a person be “reckless” about whether someone will be “offended or alarmed” by the display or distribution.

Tex. Penal Code Ann. § 43.23 – Obscenity

• • Likely not a CIMT.

Tex. Penal Code Ann. § 43.26 (Felony) – Possession or Promotion of Child Pornography

• • Likely a CIMT. See in re Olquin, 23 I. &. N. Dec. 896 (BIA 2006) (finding that the offense of possession of child pornography is a CIMT).

C. Offenses Against Public Health, Safety, and Morals

Weapons

Tex. Penal Code Ann. § 46.02 (Felony) – Unlawful Carrying of Weapons

• • Likely not a CIMT. See in re Granados, A-14103418 (BIA 1979) (“Conviction for possession of a concealed sawed-off shotgun is not a crime involving moral turpitude.”).

Tex. Penal Code Ann. § 46.02 (Misdemeanor) – Unlawful Carrying of Weapons

• • Likely not a CIMT because there is no evil intent. See in re Granados, A-14103418 (BIA 1979) (“Conviction for possession of a concealed sawed-off shotgun is not a crime involving moral turpitude.”).

Tex. Penal Code Ann. § 46.03 – Places Weapons Prohibited

• • Likely not a CIMT because there is no evil intent. See in re Granados, A-14103418 (BIA 1979) (“Conviction for possession of a concealed sawed-off shotgun is not a crime involving moral turpitude.”).

Tex. Penal Code Ann. § 46.05 – Prohibited Weapons

• • Likely not a CIMT because there is no evil intent. See in re Granados, A-14103418 (BIA 1979) (“Conviction for possession of a concealed sawed-off shotgun is not a crime involving moral turpitude.”).

Gambling

Tex. Penal Code Ann. § 47.02 – Gambling

• • Likely not a CIMT because the crime is likely not turpitudinous conduct. See in re Gaglioti, A-5064270 (BIA 1964) (holding violations of gambling laws do not ordinarily involve moral turpitude).

Tex. Penal Code Ann. § 47.03 – Gambling Promotion

• • Likely not a CIMT. See in re Gaglioti, A-5064270 (BIA 1964) (holding violations of gambling laws do not ordinarily involve moral turpitude).

Tex. Penal Code Ann. § 47.04 (misdemeanor) – Keeping a Gambling Place

• • Likely not a CIMT. See in re Gaglioti, A-5064270 (BIA 1964) (holding violations of gambling laws do not ordinarily involve moral turpitude).

D. Intoxication and Alcoholic Beverage Offenses

Tex. Penal Code Ann. § 49.02 (Misdemeanor) – Public Intoxication

• • Likely not a CIMT. No evil intent is required.

Tex. Penal Code Ann. § 49.03 – Possession of Alcoholic Beverage in Motor Vehicle

• • Likely not a CIMT. The crime punishes a person who possesses any open container of alcohol on a public highway. There is no evil intent requirement.

Tex. Penal Code Ann. § 49.07 (Felony) – Intoxication Assault

• • Likely not a CIMT. The crime is punishable if the assault occurs “by accident or mistake,” which is not an evil intent.

Tex. Penal Code Ann. § 49.08 (Felony) – Intoxication Manslaughter

• • May be a CIMT if the underlying conduct is deemed “reckless” because of the extreme harm that occurred. See Diaz Esparza v. Garland, 23 F. 4th 563 (5th Cir. 2022).  

Tex. Penal Code Ann. § 49.04 (Class B Misdemeanor) – First DWI

• • Not a CIMT. See In re Torres-Varela, 23 I. & N. Dec. 78, 85 (BIA 2001) (“Simple DUI is ordinarily a regulatory offense that requires no culpable mental state, such as intent or knowledge. We therefore found that a conviction for a simple DUI offense under Arizona law was not a conviction for a crime involving moral turpitude because it did not require a showing of a culpable mental state.”).

Tex. Penal Code Ann. § 49.09(a) (Class A Misdemeanor) – Second DWI

• • Not a CIMT. See In re Torres-Varela, 23 I. & N. Dec. 78, 85 (BIA 2001) (“Multiple convictions for the same DUI offense, which individually is not a crime involving moral turpitude, do not, by themselves, aggregate into a conviction for a crime involving moral turpitude.”).

Tex. Penal Code Ann. § 49.09(b) (Felony) – Third DWI

• • Not a CIMT. See In re Torres-Varela, 23 I. & N. Dec. 78, 85 (BIA 2001) (“Multiple convictions for the same DUI offense, which individually is not a crime involving moral turpitude, do not, by themselves, aggregate into a conviction for a crime involving moral turpitude.”).

E. Firework Offenses

Tex. Penal Code § 50.02 (State Jail Felony) – Unlawful Use of Fireworks

• • Likely not a CIMT because the use of fireworks does not require creating a “substantial risk of bodily injury.” Instead a person can be charged under § 50.02 for using fireworks as a distraction. Cf. Pulido-Alatorre v. Holder, 381 Fed. Appx. at 359 (“The BIA determined [evading arrest with a vehicle] was a CIMT because ‘such conduct reflects an awareness and conscious disregard of a substantial and unjustifiable risk.’”).

• • Likely not a CIMT because the use of fireworks does not require creating a “substantial risk of bodily injury.” Instead a person can be charged under § 50.02 for using fireworks as a distraction. Cf. Pulido-Alatorre v. Holder, 381 Fed. Appx. at 359 (“The BIA determined [evading arrest with a vehicle] was a CIMT because ‘such conduct reflects an awareness and conscious disregard of a substantial and unjustifiable risk.’”).

Tex. Penal Code § 50.02 (Second-Degree Felony) – Unlawful Use of Fireworks

• • Likely not a CIMT because the use of fireworks does not require creating a “substantial risk of bodily injury.” Instead, a person can be charged under § 50.02 for using fireworks as a distraction. Cf. Pulido-Alatorre v. Holder, 381 Fed. Appx. at 359 (“The BIA determined [evading arrest with a vehicle] was a CIMT because ‘such conduct reflects an awareness and conscious disregard of a substantial and unjustifiable risk.’”).

Tex. Penal Code § 50.02 (First-Degree Felony) – Unlawful Use of Fireworks

• • Likely a CIMT. A first-degree felony charge may be assigned if a person “causes serious bodily injury to a person the actor knows is a law enforcement officer.” See Pulido-Alatorre v. Holder, 381 Fed. Appx. at 359 (“The BIA determined [evading arrest with a vehicle] was a CIMT because ‘such conduct reflects an awareness and conscious disregard of a substantial and unjustifiable risk.’”).

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[1] In addition to BIA and court opinions, the following sources were instrumental in pulling together the analysis for most of the Texas Specific Crimes: Maria Castillo, Immigration Consequences: A Primer for Texas Criminal Defense Attorneys in Light of Padilla v. Kentucky, 63 Bay. L. Rev. 587 (2011); Jodilyn Goodwin and Jamie Diez, Immigration Consequences of Selected Texas Offenses: A Quick Reference Chart, Project Citizenship (Nov. 21, 2008); Jodilyn Goodwin and Jamie Diez, Immigration Consequences of Selected Texas Offenses: A Quick Reference Chart, Project Citizenship (Nov. 21, 2008) (updated by Members of the Immigration & Nationality Law Section of the State Bar of Texas (revised Aug. 2023); Immigration Defense Project, Perjury, False Statement or Other Alleged Fraud Offenses (Jan. 2022).