Case: 17-60345 Document: 00514872705 Page: 1 Date Filed: 03/14/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-60345 FILED March 14, 2019 Lyle W. Cayce Clerk GUSTAVO MONTEON-CAMARGO, Also Known as Ulysius Montillon-Camargo, Also Known as Gustavo Monteon Camargo, Petitioner, versus WILLIAM P. BARR, U.S. Attorney General, Respondent. Petitions for Review of an Order of the Board of Immigration Appeals Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges. JERRY E. SMITH, Circuit Judge: Gustavo Monteon-Camargo, a native and citizen of Mexico, petitions for review of a final order of removal by the Board of Immigration Appeals (“BIA” or “Board”). The BIA determined that Monteon-Camargo was ineligible for cancellation of removal because his 2007 conviction of attempted theft from a person under Texas law counts as a crime involving moral turpitude (“CIMT”) Case: 17-60345 Document: 00514872705 Page: 2 Date Filed: 03/14/2019 No. 17-60345 under a 2016 BIA decision. We grant the petition and reverse and remand because that retroactive application was error. I. Monteon-Camargo first entered the United States in 1998 on a non- immigrant visa but was arrested and administratively returned to Mexico in 2004. He reentered on an unknown date and was arrested by the Department of Homeland Security (“DHS”) in 2010. DHS served him with a Notice to Appear, charging him with inadmissibility as an alien present in the United States without being admitted or paroled, in violation of 8 U.S.C. § 1182(a)(6)(A)(i). During removal proceedings, Monteon-Camargo submitted an “Applica- tion for Cancellation of Removal and Adjustment of Status for Certain Non- permanent Residents.” DHS submitted a judgment showing that in 2007, Monteon-Camargo had pleaded guilty of attempted theft from a person in vio- lation of Texas Penal Code § 31.03. 1 Deciding that that offense was a CIMT and that Monteon-Camargo thus had failed to establish one of the prerequisites for eligibility for cancellation of removal—that his conviction was not a CIMT—the immigration judge (“IJ”) found Monteon-Camargo removable 1 Texas Penal Code § 31.03(a)–(b) provides as follows: (a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. (b) Appropriation of property is unlawful if: (1) it is without the owner’s effective consent; (2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or (3) property in the custody of any law enforcement agency was explicitly repre- sented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another. 2 Case: 17-60345 Document: 00514872705 Page: 3 Date Filed: 03/14/2019 No. 17-60345 as charged. 2 Monteon-Camargo appealed to the BIA, contending that the IJ erred in failing to apply the modified categorical approach to determine whether the attempted-theft conviction was a CIMT. He asked the BIA to remand to allow him to supplement the record with his conviction records so he could show that his conviction was not a CIMT. 3 ...
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