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Mercado v. Lynch

Facts

Jesus Cardoso Mercado, a Mexican native and permanent resident of the United States, was ordered removed after the BIA found that his convictions for indecent exposure and making terroristic threats under Texas law were CIMTs. Mercado pleaded nolo contendere to these charges in 2007 and 2010, respectively. In 2013, the Department of Homeland Security notified him of his removal, which was affirmed by an Immigration Judge and the BIA.

Petitioner is a Mexican native and citizen who was admitted to the United States as a permanent resident in 1983 and then again as a returning permanent resident in 2007. In August 2007, Petitioner pleaded nolo contendere to indecent exposure in violation of Texas Penal Code 21.08. In May 2010, he pleaded nolo contendere to making terroristic threats in violation of Texas Penal Code 22.07.

Issue

Did the BIA apply the correct standard in determining whether Mercado's convictions were crimes involving moral turpitude?

Did the BIA apply the correct standard in determining whether Mercado's convictions were crimes involving moral turpitude?

Rule

The court reviews questions of law raised in the Petition for Review de novo but gives considerable deference to the BIA's interpretation of the legislative scheme it administers. The minimum reading approach is applied to determine if an offense is a CIMT.

We review questions of law raised in the Petition for Review de novo but give 'considerable deference to the BIA's interpretation of the legislative scheme it is entrusted to administer.'

Analysis

The court found that the BIA incorrectly applied the realistic probability approach to Mercado's convictions. Instead, the court emphasized that the minimum reading approach should be used, which focuses on whether the minimum reading of the statute necessarily reaches only offenses involving moral turpitude. The BIA concluded that Mercado's convictions included the requisite reprehensible conduct and mental state to be CIMTs, but the court held that Mercado had not shown a realistic probability that individuals would be prosecuted for non-reprehensible conduct under those statutes.

The BIA applied the realistic probability approach in analyzing whether Petitioner's convictions are CIMTs. Under this approach, '[i]n determining whether a state statute sweeps more broadly than an offense defined under federal law, courts should not 'conceive of every imaginable means by which a statute might possibly be violated.' … Instead, courts must determine whether there is 'a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.'

Conclusion

The Fifth Circuit reversed the removal order and remanded the case for the BIA to analyze Mercado's convictions under the minimum reading approach.

Accordingly, we reverse and remand for the BIA to analyze Petitioner's convictions under the minimum reading approach.

Who won?

Jesus Cardoso Mercado prevailed in the case because the court found that the BIA applied the incorrect standard in determining whether his convictions constituted CIMTs.

Jesus Cardoso Mercado prevailed in the case because we hold that the BIA applied the incorrect standard in analyzing whether Petitioner's convictions constitute CIMTs.

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