
    Noe De Jesus GONZALEZ-GARCIA, Petitioner v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
    No. 04-60385.
    United States Court of Appeals, Fifth Circuit.
    Decided Feb. 14, 2006.
    
      Adan G. Vega, Law Office of Adan G. Vega & Associates, Houston, TX, for Petitioner.
    Thomas Ward Hussey, Director, U.S. Department of Justice Office of Immigration Litigation, John Ashcroft, U.S. Department of Justice, Washington, DC, Hipólito Acosta, U.S. Immigration & Naturalization Service, Houston, TX, U.S. Immigration & Naturalization Service District, Directors Office, New Orleans, LA, for Respondent.
    Before DAVIS, SMITH and DENNIS, Circuit Judges.
   W. EUGENE DAVIS, Circuit Judge:

Noe De Jesus Gonzalez-Garcia (“Gonzalez”), a native and citizen of Mexico, petitions this court to review a final order of removal issued by the Board of Immigration Appeals (“BIA”). The BIA initially affirmed the immigration judge’s (“IJ”) order removing Gonzalez based on his 1985 and 1986 convictions and remanded to the IJ to consider his claim for discretionary relief pursuant to INA § 212(c). On remand the immigration judge ordered Gonzalez removed based on a 1998 Texas assault conviction. The IJ concluded Gonzalez was not entitled to discretionary relief because the conviction was a crime of violence (“COV”) that occurred after the effective dates of IIRIRA and AEDPA. Because we conclude that the assault conviction is not a COV, Gonzalez is not removable pursuant to that offense, and he is entitled to have his claim for discretionary relief considered by the BIA. Accordingly we reinstate the BIA’s original order of removal based on the 1985 and 1986 convictions and remand to the BIA for consideration of Gonzalez’s claim for INA § 212(c) discretionary relief.

I. Facts and Procedure

Gonzalez is a native and citizen of Mexico. He was admitted to the United States on December 31, 1985 as a lawful permanent resident. He was convicted of three crimes after his admission. In 1986, Gonzalez was convicted of two counts of aiding and abetting the entry of an illegal alien. In 1989, he was convicted in Texas state court of theft of an automobile. Finally, on June 12, 1998, Gonzalez was convicted in Texas state court of assault.

On April 28, 1998, the Immigration and Naturalization Service (INS) issued a Notice to Appear charging Gonzalez as removable based on the theft conviction, which was identified as a crime of moral turpitude. The INS later filed a supplemental Notice to Appear charging that Gonzalez was removable pursuant to the alien smuggling convictions. During the hearings the IJ asked Gonzalez if he had been convicted of any other crimes beside those alleged. Gonzalez admitted that he had been convicted for “push[ing]” his wife. After the hearings, the IJ found that the theft conviction was a crime of moral turpitude, rendering Gonzalez removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i). The IJ also found that Gonzalez was removable under § 1227(a)(1)(E)® for his alien smuggling convictions.

Gonzalez asserted that he was eligible for waiver of deportation pursuant to Immigration and Nationality Act (INA) § 212(c) or for cancellation of removal under 8 U.S.C. § 1229b(a)(2). The IJ denied relief, concluding that the car theft conviction interrupted the seven years of continuous presence needed for cancellation of removal.

The Board of Immigration Appeals remanded the case in light of INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), finding that Gonzalez was entitled to seek waiver under former INA § 212(c) (8 U.S.C. § 1182(c)(1994)). Upon remand, the INS filed another supplemental Notice to Appear, alleging that Gonzalez’s assault conviction was a crime of domestic violence because it was committed against his wife. Gonzalez admitted that he had a conviction for an assault against a family member and conceded that he was removable because the offense was a crime of domestic violence. The INS noted that if Gonzalez was removable for the assault offense, then St. Cyr would not apply and Gonzalez would not be entitled to seek discretionary relief because the conviction occurred in 1998, after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA).

The IJ granted a continuance to allow the parties to brief the issue of Gonzalez’s eligibility for discretionary relief. After the continuance, Gonzalez asked to retract his admission that the offense was a crime of domestic violence, but the IJ stated that the parties were bound by their pleadings. Gonzalez argued that the assault conviction was a Class C misdemeanor that required proof that he committed the offense intentionally. The IJ rejected Gonzalez’s assertion that a particular mental state was required to constitute a crime of violence under federal law. Gonzalez also asserted that the IJ could not go beyond the charging instrument to determine that Gonzalez’s wife was the victim of the assault. The IJ also rejected that argument. The IJ found that Gonzalez was not eligible for discretionary relief because of the 1998 assault conviction. Because the IJ found Gonzalez removable for the Texas assault conviction (a post-IIRIRA offense), the judge did not reach the issue of whether Gonzalez was entitled to cancellation of removal or § 212(c) relief for the theft and smuggling convictions.

On review to the BIA, Gonzalez argued that the IJ erred by not allowing him to amend his pleadings in light of a new decision by a different IJ that a Texas assault conviction did not constitute a COV or a crime of domestic violence. He also argued that he was eligible for cancellation of removal under INA § 240A(a) and that the IJ abused his discretion by denying Gonzalez’s request for voluntary departure. The BIA affirmed the IJ’s decision without opinion. In this appeal, Gonzalez contends the BIA erred in four respects: (1) in denying his request to amend his pleadings regarding the domestic violence charge; (2) in concluding that the Texas assault conviction constitutes a COV under 18 U.S.C. § 16; (3) in concluding that the assault conviction constitutes a crime of domestic violence; and (4) in concluding that he is ineligible to apply for Cancellation of Removal under INA § 240(A)(a), 8 U.S.C. 1229b(a) or § 212(c). We address Gonzalez’s claims below, however because we agree with Petitioner that the Texas assault conviction is not a COV, we do not reach his first and third issues.

II. Standard of Review

This court generally only reviews decisions of the BIA, except it may review an IJ’s decision when the BIA affirms the IJ’s decision without opinion or additional explanation. See Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir.2003). This court must affirm the decision if there is no error of law and if reasonable, substantial, and probative evidence on record, considered as a whole, supports the Board’s factual findings. Id.

III. Crime of Violence

Gonzalez contends that his Texas assault conviction does not constitute a crime of violence as defined by 18 U.S.C. § 16. He maintains that the assault offense for which he was convicted did not have as an element the intentional use of physical force. Because the offense could be committed without the use of physical force, we agree that this offense does not qualify as a COV.

Section 1227 (a)(2)(E)(i) of Title 8 provides that “[a]ny alien who at any time after admission is convicted of a crime of domestic violence ... is deportable.” For purposes of that section, “the term ‘crime of domestic violence’ means any crime of violence (as defined in section 16 of Title 18) against a person committed by a current or former spouse of the person....” 8 U.S.C. § 1227(a)(2)(E)(i). Thus, whether Gonzalez’s assault conviction was a “crime of domestic violence” depends on (1) whether his assault conviction is a “crime of violence as defined by 18 U.S.C. § 16, and (2) whether his victim was within the class of persons set forth in § 1227(a)(2)(E)(i).”

Section 16 defines crime of violence as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” or a felony offense that involves a substantial risk that physical force will be used against the person or property of another. 18 U.S.C. § 16(a) & (b). This court uses a categorical approach to determine whether an offense is a COV. United States v. Charles, 301 F.3d 309, 313-14 (5th Cir.2002). In other words, it reviews whether a defined offense is, in the abstract, a COV without looking to the underlying facts of the conviction. United States v. Chapar-Garza, 243 F.3d 921, 924 (5th Cir.2001).

Under Texas law, a person commits assault if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

Tex. Penal Code Ann. 22.01(a).

The charging instrument alleged that Gonzalez “did then and there intentionally and knowingly cause bodily injury to CLAUDIA GONZALEZ, hereinafter called the Complainant, by STRIKING THE COMPLAINANT WITH HIS HAND.” The language of the charging instrument tracks § 22.01(a)(1), but the judgement of conviction indicates that the charge was “[rjeduced to a Class C assault.” Therefore, Gonzalez pleaded guilty to either subsection (2) or (3) of § 22.01(a).

If a statute provides alternative means of committing an offense, this court may look to the charging papers to determine which alternative applies to a particular case. See United States v. Calderon-Pena, 383 F.3d 254, 258 (5th Cir.2004), cert. denied, 543 U.S. 1076, 125 S.Ct. 932, 160 L.Ed.2d 817 (2005). Because Gonzalez pleaded guilty to a lesser offense than the one charged, the charging instrument is of little assistance. However, because the bill of information alleged that Gonzalez actually caused bodily injury to the victim, rather than threatening her, we must consider that Gonzalez was convicted of violating § 22.01(a)(3). To convict under § 22.01(a)(3), the state need only prove that the perpetrator intentionally or knowingly caused “offensive or provocative” physical contact with another.

This court has found that “force,” as used in the statutory definition of a COV is “synonymous with destructive or violent force.” United States v. Rodriguez-Guzman, 56 F.3d 18, 20 n. 8 (5th Cir.1995). Recently we have stated that “while a ‘harmful’ touching likely involves as an element the use, attempted use, or threatened use of destructive or violent force against the person of another necessary to quality for a crime of violence sentence enhancement ... an offensive touching may not involve such an element.” United States v. Sanchez-Torres, 136 Fed. Appx. 644 (5th Cir.2005)(emphasis added). We find this reasoning persuasive and conclude that “offensive or provocative contact” does not necessarily involve the use of physical force. Therefore, subsection (a)(3) of the Texas assault statute does not constitute a COV and Gonzalez is not removable for that offense.

IV. Relief from Removal

In its motion to amend or modify the opinion, the government concedes that Gonzalez is entitled to discretionary waiver of his theft and smuggling convictions under § 212(c). Under these circumstances, it is unnecessary to consider cancellation of removal. We therefore remand this case to the BIA for consideration of his entitlement to discretionary relief under § 212(c).

Y. Conclusion

Because we find that the petitioner’s Texas assault conviction is not a crime of violence, he is not removable pursuant to INA § 237(a)(2)(E)(i), and he is entitled to apply for discretionary waiver pursuant to INA § 212(c), 8 U.S.C. 1182(c). Gonzalez is removable based on the 1985 and 1986 convictions and we reinstate the BIA’s original order of removal and remand this case to the BIA for consideration of Gonzalez’s claim for § 212(c) discretionary relief and further proceedings consistent with this opinion. 
      
       Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     
      
      . An alien is removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i) if he or she is convicted of a crime of moral turpitude.
     
      
      . An alien is removable pursuant to 8 U.S.C. § 1227(a)(l)(E)(i) if he knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.
     
      
      . Section 1229b(d)(l) states: "[A]ny period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) ... when the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” 8 U.S.C. § 1229b(d)(l).
     
      
      . INA § 237(a)(2)(E)(i) makes any alien deportable for crimes of domestic violence. 8 U.S.C. § 1227(a)(2)(E)©.
     
      
      . Because we find that the Texas assault conviction is not a COV as defined by 18 U.S.C. § 16, we need not address whether the victim was in the class of persons set forth in § 1227(a)(2)(E)®.
     
      
      . The Texas assault offense which Gonzalez was charged is a misdemeanor offense. Thus, it clearly does not fall under 18 U.S.C. § 16(b) which requires a felony conviction.
     
      
      . An offense under § 22.01(a)(1) is a Class A misdemeanor, while offenses under § 22.01(a)(2) and § 22.01(a)(3) are Class C misdemeanors.
     
      
      . Three other Circuits have followed similar reasoning and have reached the conclusion that offensive contact does not involve "use of force.” See United States v. Arnold, 58 F.3d 1117, 1122 n. 4 (6th Cir.1995); Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir.2003); Singh v. Ashcroft, 386 F.3d 1228, 1234 (9th Cir.2004). Two Circuits, on the other hand, have found that offensive physical contact does involve the "use of force.” See United States v. Nason, 269 F.3d 10, 20 (1st Cir.2001); United States v. Smith, 171 F.3d 617, 621 n. 2 (8th Cir.1999).
     