Omar Hernandez v. Loretta Lynch

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 4, 2016
• Docket: 15-60067
• Status: Published

Opinion

Case: 15-60067 Document: 00513492473 Page: 1 Date Filed: 05/04/2016

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15-60067 United States Court of Appeals Fifth Circuit

FILED OMAR ALBERTO HERNANDEZ, May 4, 2016 Lyle W. Cayce Petitioner, Clerk

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals

Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges. PER CURIAM: Petitioner Omar Alberto Hernandez, a citizen of Mexico, was determined ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1)(C) after an immigration judge concluded that his conviction for deadly conduct under Texas Penal Code § 22.05(a) was categorically a crime involving moral turpitude (“CIMT”). Petitioner appealed to the Board of Immigration Appeals (“BIA”), which applied the “realistic probability” approach to hold that deadly conduct was categorically a CIMT and dismissed the appeal. 1 For the reasons explained in Mercado v. Lynch, 14-60539, slip op. at 3-5 (5th Cir. May 4, 2016),

1 Matter of Hernandez, 26 I. & N. Dec. 464 (BIA 2015). Case: 15-60067 Document: 00513492473 Page: 2 Date Filed: 05/04/2016

No. 15-60067

we hold that the BIA applied the incorrect standard in analyzing whether Petitioner’s conviction constitutes a CIMT. We reverse and remand for the BIA to analyze Petitioner’s convictions under the minimum reading approach.