PER CURIAM:
Proceeding pro se, Henry Kpani Laryea, a native and citizen of Ghana, petitions for review of a decision of the Board of Immigration Appeals finding that his prior conviction of evading arrest under Texas Penal Code § 38.04 (2011) was categorically a crime involving moral turpitude rendering him ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(l). Because we hold that § 38.04 is not categorically a crime involving moral turpitude, we GRANT Laryea’s petition, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.
I.
Laryea was admitted to the United States in 2002 on an F-l nonimmigrant student visa. Laryea remained in the United States without authorization after his visa expired in 2008. In July 2011, Laryea pleaded guilty to evading arrest, a Class A misdemeanor, in violation of Texas Penal Code § 38.04 (2011),
and was sentenced to 18 days in jail. The Department of Homeland Security initiated removal proceedings pursuant to 8 U.S.C. § 1227(a)(1)(B) against Laryea for remaining in the United States longer than his visa authorized. Through counsel, Laryea admitted the factual allegations in his Notice to Appear and conceded removability, but indicated his intention to apply for cancellation of removal under 8 U.S.C. § 1229b(b)(l).
The Immigration Judge (“IJ”) determined that § 38.04 was divisible and applied the modified categorical approach to determine whether the conduct underlying Laryea’s conviction was a crime involving moral turpitude (“CIMT”). The IJ reviewed several state court documents, including a police report filed after Laryea’s encounter with law enforcement that led to his indictment. The IJ concluded that Lar-yea’s conduct, fleeing from peace officers attempting to lawfully arrest him, was morally turpitudinous and constituted a CIMT under 8 U.S.C. § 1227(a)(2), which pretermitted his application for cancellation of removal under 8 U.S.C. § 1229b(b)(l)(c).
Laryea appealed to the Board of Immigration Appeals (“BIA”). The BIA vacated the IJ’s decision and remanded the case, holding that the IJ erred in (1) finding that § 38.04 was divisible without first considering whether all of the offenses under the statute are categorically a CIMT; and (2) relying on the police report, a document not part of the record of conviction in this case, to determine Laryea’s conviction constituted a CIMT.
On remand, the IJ held that § 38.04 was categorically a CIMT because it involves conduct that reflects “an intentional attempt to evade responsibility,” which constitutes a CIMT under our case, Garcia-Maldonado v. Gonzales.
While Garcia-Maldonado involved a different crime, the IJ reasoned that intentionally fleeing from a lawful arrest is, at bottom, an evasion of responsibility and therefore § 38.04 categorically constitutes a CIMT. Alternatively, the IJ held that if § 38.04 is not categorically a CIMT, it would still be one under the modified categorical approach. The IJ pointed to Pulido-Alatorre v. Holder, where we held that evading arrest with a vehicle under a prior version of § 38.04 was a CIMT.
The IJ looked to the appropriate documents in Laryea’s record of conviction and concluded that he was convicted under the portion that criminalizes evading arrest with a vehicle, the same as in Pulido-Alatorre, and thus was convicted of a CIMT.
Laryea again appealed the IJ’s decision to the BIA. The BIA affirmed the decision of the IJ, finding that § 38.04 is categorically a CIMT because “[t]he gravamen of this offense is the intentional and affirmative obstruction of, or interference with, a police officer’s exercise of the duty to make a lawful arrest.” Relying on Garcia-Maldonado, the BIA held that this “intentional evasion of responsibility for criminal acts” constitutes a CIMT.
Because the BIA held that Laryea’s conviction was categorically a CIMT, it failed to reach his arguments relating to the modified categorical approach.
Proceeding pro se, Laryea filed a petition for review from this Court. Lar-yea’s primary argument on appeal is that § 38.04 is divisible and the BIA should have applied the modified categorical approach to determine whether his crime of conviction is a CIMT.
II.
“When considering a petition for review, this court has the authority to review only the BIA’s decision, not the IJ’s decision, unless the IJ’s decision has some impact on the BIA’s decision.”
“[T]his court may review the IJ’s findings and conclusions if the BIA adopts them.”
Here, the BIA affirmed the findings and conclusions of the IJ, so we review both decisions.
If an alien has been convicted of a CIMT, he is “ineligible for cancellation of removal if, among other things, under the statute of conviction, ‘a sentence of one year or longer may be imposed.’ ”
The Immigration and Nationality Act “ ‘does not define the term moral turpitude,’ and legislative history provides us with little guidance as to Congress’s intent.”
The BIA has determined that “moral turpitude” includes conduct that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”
“We give Chevron [U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ] deference to the BIA’s interpretation of the term ‘moral turpitude’ and its guidance on the general categories of offenses which constitute CIMTs, but we review de novo the BIA’s determination of whether a particular state or federal crime qualifies as a CIMT.”
We use the categorical approach to determine whether a prior conviction is a CIMT by focusing on the elements of the offense rather than the underlying conduct and asking “if the minimum reading of the statute necessarily reaches only offenses involving moral turpitude.”
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PER CURIAM:
Proceeding pro se, Henry Kpani Laryea, a native and citizen of Ghana, petitions for review of a decision of the Board of Immigration Appeals finding that his prior conviction of evading arrest under Texas Penal Code § 38.04 (2011) was categorically a crime involving moral turpitude rendering him ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(l). Because we hold that § 38.04 is not categorically a crime involving moral turpitude, we GRANT Laryea’s petition, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.
I.
Laryea was admitted to the United States in 2002 on an F-l nonimmigrant student visa. Laryea remained in the United States without authorization after his visa expired in 2008. In July 2011, Laryea pleaded guilty to evading arrest, a Class A misdemeanor, in violation of Texas Penal Code § 38.04 (2011),
and was sentenced to 18 days in jail. The Department of Homeland Security initiated removal proceedings pursuant to 8 U.S.C. § 1227(a)(1)(B) against Laryea for remaining in the United States longer than his visa authorized. Through counsel, Laryea admitted the factual allegations in his Notice to Appear and conceded removability, but indicated his intention to apply for cancellation of removal under 8 U.S.C. § 1229b(b)(l).
The Immigration Judge (“IJ”) determined that § 38.04 was divisible and applied the modified categorical approach to determine whether the conduct underlying Laryea’s conviction was a crime involving moral turpitude (“CIMT”). The IJ reviewed several state court documents, including a police report filed after Laryea’s encounter with law enforcement that led to his indictment. The IJ concluded that Lar-yea’s conduct, fleeing from peace officers attempting to lawfully arrest him, was morally turpitudinous and constituted a CIMT under 8 U.S.C. § 1227(a)(2), which pretermitted his application for cancellation of removal under 8 U.S.C. § 1229b(b)(l)(c).
Laryea appealed to the Board of Immigration Appeals (“BIA”). The BIA vacated the IJ’s decision and remanded the case, holding that the IJ erred in (1) finding that § 38.04 was divisible without first considering whether all of the offenses under the statute are categorically a CIMT; and (2) relying on the police report, a document not part of the record of conviction in this case, to determine Laryea’s conviction constituted a CIMT.
On remand, the IJ held that § 38.04 was categorically a CIMT because it involves conduct that reflects “an intentional attempt to evade responsibility,” which constitutes a CIMT under our case, Garcia-Maldonado v. Gonzales.
While Garcia-Maldonado involved a different crime, the IJ reasoned that intentionally fleeing from a lawful arrest is, at bottom, an evasion of responsibility and therefore § 38.04 categorically constitutes a CIMT. Alternatively, the IJ held that if § 38.04 is not categorically a CIMT, it would still be one under the modified categorical approach. The IJ pointed to Pulido-Alatorre v. Holder, where we held that evading arrest with a vehicle under a prior version of § 38.04 was a CIMT.
The IJ looked to the appropriate documents in Laryea’s record of conviction and concluded that he was convicted under the portion that criminalizes evading arrest with a vehicle, the same as in Pulido-Alatorre, and thus was convicted of a CIMT.
Laryea again appealed the IJ’s decision to the BIA. The BIA affirmed the decision of the IJ, finding that § 38.04 is categorically a CIMT because “[t]he gravamen of this offense is the intentional and affirmative obstruction of, or interference with, a police officer’s exercise of the duty to make a lawful arrest.” Relying on Garcia-Maldonado, the BIA held that this “intentional evasion of responsibility for criminal acts” constitutes a CIMT.
Because the BIA held that Laryea’s conviction was categorically a CIMT, it failed to reach his arguments relating to the modified categorical approach.
Proceeding pro se, Laryea filed a petition for review from this Court. Lar-yea’s primary argument on appeal is that § 38.04 is divisible and the BIA should have applied the modified categorical approach to determine whether his crime of conviction is a CIMT.
II.
“When considering a petition for review, this court has the authority to review only the BIA’s decision, not the IJ’s decision, unless the IJ’s decision has some impact on the BIA’s decision.”
“[T]his court may review the IJ’s findings and conclusions if the BIA adopts them.”
Here, the BIA affirmed the findings and conclusions of the IJ, so we review both decisions.
If an alien has been convicted of a CIMT, he is “ineligible for cancellation of removal if, among other things, under the statute of conviction, ‘a sentence of one year or longer may be imposed.’ ”
The Immigration and Nationality Act “ ‘does not define the term moral turpitude,’ and legislative history provides us with little guidance as to Congress’s intent.”
The BIA has determined that “moral turpitude” includes conduct that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”
“We give Chevron [U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ] deference to the BIA’s interpretation of the term ‘moral turpitude’ and its guidance on the general categories of offenses which constitute CIMTs, but we review de novo the BIA’s determination of whether a particular state or federal crime qualifies as a CIMT.”
We use the categorical approach to determine whether a prior conviction is a CIMT by focusing on the elements of the offense rather than the underlying conduct and asking “if the minimum reading of the statute necessarily reaches only offenses involving moral turpitude.”
If the statute contains alternative elements where some are qualifying offenses and some are not, we use the modified categorical approach and consider the record of conviction to determine whether the alien was convicted under the qualifying portion of the statute.
Laryea argues that his prior conviction, evading arrest or detention under Texas Penal Code § 38.04 (2011), is a divisible statute and therefore the modified categorical approach should be used to determine whether his crime of conviction is a CIMT.
Laryea was convicted of a Class A misdemeanor under § 38.04. Under this statute, a person evades arrest “if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.”
Subpart (b) of this statute classifies the offense as a Class A misdemeanor or as a felony under (b)(1) if “(A) the actor has been previously convicted under this section; or (B) the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section.”
Under Mathis, we must determine whether § 38.04 is divisible, that is, whether it contains alternative elements where some acts are CIMT and some acts are not.
We hold that § 38.04 is divisible under this standard because subparts (b)(1)(A) and (B) make it a felony if the fleeing individual has a prior conviction under § 38.04 or uses a vehicle to flee.
The felony acts described above are “different crime[s]” from the misdemeanor offense described in subpart (a) which criminalizes “fleeting] from a person he knows is a peace officer attempting lawfully to arrest or detain him.”
Therefore, we are bound to apply the modified categorical approach to determine whether Laryea’s crime of conviction is a CIMT. This conclusion is consistent with our findings in Pulido-Alatorre v. Holder.
In that unpublished opinion, we held that the' alien’s conviction under § 38.04 involving flight using a vehicle was a CIMT.
Here, examining the record of conviction, Laryea was convicted of a Class A misdemeanor, which does not involve flight using a vehicle. We hold that fleeing from a police officer, without more, does not rise to the level of moral turpitude because it is not “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”
Therefore, we find that the conduct involved in Laryea’s offense, “intentionally fleeting] from a person he knows is a peace officer attempting lawfully to arrest or detain him,” is not a CIMT.
The Attorney General relies on Garciar-Maldonado, a case that involved a different crime,
for the general proposition that intentional evasion of responsibility for criminal acts is a CIMT. Because Lar-yea intentionally evaded responsibility by fleeing from a lawful arrest, the Attorney General argues, his conviction under § 38.04 is a CIMT. We disagree. There, we held that a prior conviction for failing to stop and render aid after an automobile accident was a CIMT.
Garcia-Maldonado was convicted of intentionally leaving the scene of a serious accident that he knew had occurred.
“Once a driver knows he was involved in an accident, he necessarily knows it is wrong to leave, or at the very least, to leave without attempting reasonable assistance.”
“[F]ailure to stop and render aid after being involved in an automobile accident is the type of base behavior that reflects moral turpitude.”
The conduct criminalized under § 38.04(a), even to the extent it reflects an intentional evasion of responsibility for criminal acts, does not, without more, rise to this level of moral turpitude.
Garcia-Maldonado is therefore distinguishable.
III.
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. Therefore, Laryea’s petition for review is GRANTED. We VACATE the BIA’s order and REMAND for further proceedings consistent with this opinion.