U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virgmia 22041

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Ayala,Miriam A OHS/ICE Office of Chief Counsel - PIS
Law Office of Ayala & Acosta,PLLC 27991 Buena Vista Blvd
721 E. Esperanza Ave. Los Fresnos, TX 78566
McAllen, TX 78501

Name:PAEZJUAREZ,MAUROJESUS A 075-575-447

Date of this notice: 1/5/2018

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Mann, Ana
Adkins-Blanch, Charles K.
Kelly, Edward F.

Stiart•2 ff_l. .,
Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Mauro Jesus Paez Juarez, A075 575 447 (BIA Jan. 5, 2018)
U.S. Departme,nt of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A075 575 447 -Los Fresnos, TX Date:

JAN -
5 2018
In re: Mauro Jesus PAEZ JUAREZ

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Miriam A. Ayala, Esquire

ON BEHALF OF OHS: Avia Castillo

Assistant Chief Counsel

APPLICATION: Termination of proceedings

The respondent, a native and citizen of Mexico, appeals the decision of the Immigration Judge,
dated August 1, 2017, sustaining the charge of removability under section 212(a)(2)(A)(i)(I) of the
Immigration and Nationality Act, 8 U.S.C. § l182(a)(2)(A)(i)(I), and granting his application for
cancellation of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a). The Department
of Homeland Security ("OHS") opposes the appeal. The respondent's appeal will be sustained.
As the OHS has not established that the respondent is subject to removal from the United States,
we will terminate these removal proceedings.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We review
all other issues, including issues of law, discretion, or judgment, under a de novo standard.
8 C.F.R. § 1003.l(d)(3)(ii).

Upon de novo review, we disagree with the Immigration Judge's holding that the respondent,
a returning lawful permanent resident, is subject to removal from the United States as an alien who
has been convicted of a crime involving moral turpitude. In particular, we conclude that the
respondent's conviction for Failure to Comply with Registration Requirements does not constitute
a conviction for a crime involving moral turpitude. Under TEX. CODE CRIM. PROC. § 62.l02, "A
person commits an offense if the person is required to register and fails to comply with any
requirement of [Chapter 62 of the Texas Code of Criminal Procedure]." As a mental state is not
an element of the offense, TEX. PENAL CODE§ 6.02(c) requires that a mental state be "read into"
the statute. Robinson v. State, 466 S.W.3d 166, 171 (Tex. Crim. App. 2015). Thus, at a minimum,
to sustain the respondent's conviction, the statute requires a showing that he (1) was reckless about
whether he had a duty to register as a sex offender and (2) failed to comply with any requirement
of Chapter 62 of the Texas Code of Criminal Procedure. Id. at 173. A sex offender, such as the
respondent, does not have any defense where the State fails to complete any particular act, such as
delivering him a particular form to place him on notice of his requirement to register. Varnes v.

State, 63 S.W.3d 824, 828- 29 (Tex.App. - Houston 2001).

Cite as: Mauro Jesus Paez Juarez, A075 575 447 (BIA Jan. 5, 2018)
A075 57
, 5 447

TEX. CODE CRIM. PROC. § 62. l 02 is a "generalized 'umbrella' statute that criminalizes the
failure to comply with any of the registration requirements set out in Chapter 62." Young v. State,
341 S.W.3d 417, 425 (Tex. Crim. App. 2011). Chapter 62 of the Texas Code of Criminal
Procedure contains numerous distinct requirements, such as the duty to register as a sex offender,
the duty to report online identifiers, the duty to report a regularly visited location, the duty to report
one's status as a sex offender when applying for a driver's license, as well as the duty to report

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any change of address. Id. For example, a defendant was found to have failed to comply with the
sex offender reporting requirements where, among other social media website accounts, he did not
report his accounts with internet websites which concerned poetry (PoemHunter.com), the weather
(Wunderground.com), and consignment shopping (Swap.com). Haney v. State, No. 06-13-00104-
CR, 2014 WL 345920 (Tex. App. - Texarkana Jan. 30, 2014). In Howell v. State, No. 11-07-
00173-CR, 2008 WL 4902412 (Tex. App. - Eastland Nov. 13, 2008), the defendant, after having
worked on and off at a car wash for years, was found to have violated TEX. CODE CRIM. PROC.
§ 62. l 02 because, after being told by his manager that he had been "replaced on the schedule but
that he could call back" (as opposed to being explicitly told that he had been fired), recklessly
failed to report his change of employment, i.e., to that o(being unemployed, despite his professed
belief that he was still employed at the car wash.

We have held that, under California law, the willful failure to register as a sex offender is a
crime involving moral turpitude. Matter of Tobar-Lobo, 24 I&N Dec. 143, 143 (BIA 2007).
However, in order to sustain a conviction under the statute discussed in Matter of Tobar-Lobo, a
defendant must have had actual knowledge of the registration requirement and willfully failed to
register. By comparison, as stated above, in order to be convicted under TEX. CODE CRIM. PROC.
§ 62.102, the defendant need only act recklessly. There is also no requirement that the State of
Texas specifically inform him of his registration requirements.

Our decision in Matter o/Tobar-Lobo also placed weight on the fact that the alien has violated
a duty owed to society and to other residents who are concerned about the presence of sex offenders
in their communities. "A principal purpose of the statute is to safeguard children and other citizens
from exposure to danger from convicted sex offenders." Id. at 146. As we explained, a convicted
sex offender's failure to obey the lawful requirement to register with appropriate authorities so that
others may become aware of the potential danger posed by such an offender is "despicable." Id.
at 147. By comparison, we do not conclude that the same level of vileness attaches where a sex
offender fails to report his usemame on an online community website. The failure to report one's
usemame on a website which concerns poetry, the weather, or consignment shopping does not
involve the same degree of vileness as failing to report a sex offender's address so-that his actual
and physical presence can be known. Moreover, while law enforcement and the community as a
whole has a need to know where sex offenders are currently employed in order to take appropriate
action, the same level of despicable conduct is not involved where an individual recklessly fails to
report that he has become unemployed or, in the case of Howell, fails to comprehend that being
told that he had been "replaced on the schedule" means that he has actually lost his job.

Considering the circumstances set forth above, we conclude that a conviction under TEX. CODE
CRIM. PROC. § 62. l 02 does not categorically constitute a conviction for a crime involving moral
turpitude. Given the mental state which is simply "read into" the statute, the large breadth of
potential violations covered under the statute, and the lack of any notice requirement, a violation

Cite as: Mauro Jesus Paez Juarez, A075 575 447 (BIA Jan. 5, 2018)
A075 575 447.

of TEX. CODE CRIM. PROC. § 62.102 does not, at a minimum, necessarily involve conduct which
rises to the level ofbeing inherently base, vile, or depraved, and contrary to the accepted rules of
morality and the duties owed between persons or to society in general. Gomez-Perez v. Lynch,
829 F.3d 323, 327 (5th Cir. 2016); Cisneros-Guerrerro v. Holder, 774 F.3d 1056 (5th Cir. 2014).

TEX. CODE CRIM. PROC. § 62.102 is not further divisible under the modified categorical

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approach to address the moral turpitude question. "The test to distinguish means from elements is
whether a jury must agree." United States v. Howell, 838 F.3d 489, 497 (5th Cir. 2Q-16). While
the jury must unanimously agree on whether the defendant violated his reporting duties, it need
not agree on the method by which that duty went unfulfilled. Young v. State, 341 S.W.3d at 422.
As such, under the modified categorical approach, the statute is not further divisible to ascertain
the exact nature of the respondent's violation of the reporting requirements or the mental state
which he employed in committing his offense. Matter of Chairez, 26 I&N Dec. 819, 822
(BIA 2016) ("[D]isjunctive statutory language does not render a criminal statute divisible unless
each statutory alternative defines an independent 'element' of the offense, as opposed to a mere
'brute fact' describing various means or methods by which the offense can be committed").
Accordingly, the modified categorical approach has "no role to play." Descamps v. United States,
133 S. Ct. 2276, 2285 (2013).

In light ofthe foregoing, we vacate the Immigration Judge's decision to sustain the charge of
removability under section 212(a)(2)(A)(i)(I) ofthe Act as the respondent's conviction for Failure
to Comply with Registration Requirements does not constitute a conviction for a crime involving
moral turpitude. As the DHS has not otherwise alleged that the respondent is subject to removal
from the United States, the following orders are entered.

ORDER: The respondent's appeal is sustained and the Immigration Judge's decision to sustain
the charge ofremovability under section 212(a)(2)(A)(i)(I) ofthe Act is vacated.

FURTHER ORDER: These removal proceedings are terminated.

F�

Cite as: Mauro Jesus Paez Juarez, A075 575 447 (BIA Jan. 5, 2018)
,

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LOS FRESNOS, TEXAS

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File: A075-575-447 August 1, 2017

In the Matter of

)
MAURO JESUS PAEZ JUAREZ ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGE: Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act,

alien who has been convicted of, or who admits having committing,
or who admits committing acts which constitute the essential
elements of (or a conspiracy or attempt to violate) a crime involving
moral turpitude (other than a purely political offense).

APPLICATION: Cancellation of removal for a lawful permanent resident under

Section 240A(a) of the Immigration and Nationality Act

ON BEHALF OF RESPONDENT: Miriam Ayala, Attorney at Law

ON BEHALF OF OHS: Avia Castile,Castillo. Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Mexico. The United States

Department of Homeland Security brought these removal proceedings against the

respondent under the authority of the Immigration and Nationality Act. Proceedings

were commenced with the filing of a Notice to Appear with the immigration court. See

Exhibit 1.
 REMOVABILITY

The respondent admitted the allegations contained in the Notice to

Appear. However, he denied he was subject to remova&te! as charged. Specifically,

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respondent argues that his conviction for failing to register as a sex offender in violation

of Texas law is not a crime involving moral turpitude (CIMT) under the Immigration and

Nationality Act.

The parties conceded that this issue has not been conclusively resolved in

the U.S. 5th Circuit. However, they disagree on whether or not respondent's crime is a

CIMT.

Both parties have presented arguments statiAg their favoring their

positions. OHS argues that the Board of Immigration Appeals found that willful failure to

register as a ss-ex offender in violation of California law is a crime involving moral

turpitude. Matter of Tobar-Lobo, 24 l&N Dec. 143 (2007). Respondent argues that

while the 5th Circuit Court of Appeals has not considered this issue, other circuits have

considered similar statutes and found that they did not constitute CIMTs.

Since the Board has not overruled Tobar-Lobo, this court is bound by that

decision. Further, the court notes that given the difference in wording of various state

statutes, the circuit court decisions cited by respondent do not definitively demonstrate

that the Board would not still find the Texas statute in question a CIMT.

Further, the respondent argues that the Texas statute in question does not

require a culpable mental state. This is incorrect.

Section 62.102(b)(1) of the Texas Code of Criminal Procedure, for which

respondent was convicted, provides: (a) Aa person commits an offense if the person is

required to register and fails to comply with any requirement of this chapter. (b) A-an

offense under this article is ... a state jail felony if the actor is a person whose duty to

A075-575-447 2 August 1, 2017

register expires under Article 62.101(b) or (c). Further, both Section 62.101(b) and (c)

refer to a registration requirement as a "duty" to be performed by the defendant.

Since Section 62.102(b)(1) does not itself refer to a specific scienter

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required for conviction, the court must decide whether respondent's failure to adhere to

a specific duty imposed upon him - i.e., failure to register - required scienter on his part.

"If the definition of an offense does not prescribe a culpable mental state,

a culpable mental state is nevertheless required unless the definition plainly dispenses

with any mental element." Texas Penal Code 6.02(c) ("!if the definition of an offense

does not prescribe a culpable mental state, one is nevertheless required under

Subsection(b), intent, knowledge, or recklessness suffices to establish criminal

responsibility."). Because Section 62.101(a) does not contain a culpable mental state

and does not clearly dispense with one, Section 6.02(c) requires that Section 62.102(a)

be read to require intent, knowledge, or recklessness to establish criminal responsibility.

Id. Therefore, because Section 62.102(b)(1) of the Texas Code of Criminal Procedure

fails to provide a culpable mental state and does not clearly dispense with oneit is Rot

clearly dispeRsable, Texas Penal Code Section 6.02(c) requires we read one into the

statute. Robinson v. State, 466 S.W. 3d 166, 170-71 (Tex. Crim. App. 2015).

Further, the indictment under which respondent was convicted states that

respondent knowingly or intentionally failed to register as required. See Exhibit 1.

Considering all of the above, the court finds that respondent is subject to

removal as charged.

CANCELLATION OF REMOVAL

Respondent has applied for cancellation of removal under INA Section

240A(a).

The OHS agrees that respondent is eligible for this relief. After

A075-575-447 3 August 1, 2017

respondent presented evidence in support of this application, the court concluded that

respondent merited a grant of cancellation of removal.

OHS has stated that they do not wish to appeal the decision granting

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respondent cancellation of removal. Therefore, the court need not provide further

analysis on this issue.

Accordingly, respondent's application for cancellation of removal pursuant

to Section 240A(a) of the Act is granted. However, as respondent desires to appeal the

finding of removability, a full and complete decision on that issue has been set forth

above.

ORDERS

ORDER: IT IS HEREBY ORDERED respondent's application for

cancellation of removal is granted.

Dated this first day of August, 2017.

Please see the next page for electronic

signature
KEITH E. HUNSUCKER
Immigration Judge

A075-575-447 4 August 1, 2017

/Isl/

Immigration Judge KEITH E. HUNSUCKER

i:05.tldoj federation services rp-stslkeith.hunsucker@usdoj.gov

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on October 19, 2017 at 2:35 PM GMT

A075-575-447 5 August 1, 2017