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by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Ponce v. Garland (June 9, 2023) No. 21-60530 are as follows:

 

Case History

The Department of Homeland Security (“DHS”) charged that the Petitioner is subject to removal from the United States is subject to removal from the United States by serving him with a notice to appear (“NTA”) which it filed with an immigration court.

 

An Immigration Judge determined that the Petitioner was subject to removal as charged and denied his applications for relief from removal.

 

The Petitioner appealed to the Board of Immigration Appeals (“BIA”).

 

The BIA affirmed the Immigration Judge’s determination that the Petitioner is subject to removal and upheld the Immigration Judge’s denial of relief from removal.

 

The Petitioner then filed a petition for review of the decision the BIA.

 

Facts

• The Petitioner is a citizen of El Salvador who was adjusted to lawful permanent resident status in 2014.
• In 2019, the Petitioner pled guilty to injury to a child in the third degree in violation of Texas Penal Code § 22.04(a).
• The Texas State Court sentenced the Petitioner to five years of deferred adjudication, counseling, and 200 hours of community service.
• The DHS then served the Petitioner with a Notice to Appear (Form I-862), alleging that his conviction for injury to a child in the third degree subjected him removal under section 237(a)(2)(E)(i) (crime of child abuse) and section 237(a)(2)(A)(i)(I) (crime involving moral turpitude ("CIMT")) of the Immigration and Nationality Act, as amended (“the Act”).
• An Immigration Judge found that the Petitioner was subject to removal.
• The Petitioner then applied for relief from removal by filing applications for asylum, withholding of removal, protection under the Convention Against Torture (CAT), and cancellation of removal.  See sections 208, 241(b)(3), 8 C.F.R. § 1208.16(c)(2) and section 240A(a) of the Act, respectively.
• On June 15, 2020, the Immigration Judge denied all of the Petitioner’s applications for relief.
• The BIA affirmed the Immigration Judge’s determination that the Petitioner is subject to removal from the United States and upheld the Immigration Judge’s decision to deny the Petitioner’s relief applications.

 

Held

Petition for Review DENIED

 

Rationale

The Petitioner raised three challenges to the BIA’s denial of his motion to reopen:

1. Texas Penal Code § 22.04(a) is indivisible, and even if divisible, it is overbroad and does not fit the generic federal definition of child abuse;
2. his conviction does not qualify as a CIMT; and
3. the Immigration Judge erred in denying his applications for asylum and relief under the CAT.

 

The Fifth Circuit Court of Appeal reasoned as follows:

• Section 22.04(a) provides:

A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:

(1) serious bodily injury;

(2) serious mental deficiency, impairment, or injury; or

(3) bodily injury.

• Under BIA precedent, the term “child abuse” means

any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation.

    Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, at 512 (BIA 2008).

• Under the categorical approach to classifying indivisible offenses for immigration purposes, § 22.04(a) of the Texas Penal Code is not a categorical match for the BIA’s definition of child abuse because an individual can also violate § 22.04(a) by injuring an elderly or disabled person.  Mathis v. United States, 579 U.S. 500, at 504 (2016) (courts “focus solely on whether the elements of the crime of conviction sufficiently match the elements of [the generic federal offense], while ignoring the particular facts of the case.”).
• However, the Petitioner’s argument that § 22.04(a) of the Texas Penal Code is indivisible is now foreclosed by Monsonyem v. Garland, 36 F.4th 639, at 645 (5th Cir. 2022) (“§ 22.04(a) is divisible as to victim class.”).
• Therefore, it was not erroneous for the BIA to apply the modified categorical approach in the Petitioner’s case and consider his charging documents to determine the crime with which he was charged.  Mathis, 579 U.S. at 505–06; Monsonyem, 36 F.4th at 645.
• Based on the Petitioner’s plea agreement, he was charged with causing injury by omission to a child younger than 14 years of age.
• Consequently, the BIA properly concluded the Petitioner was subject to removal based on his conviction because he had caused injury to a child, as opposed to any of the alternative classes of victims described in § 22.04(a) of the Texas Penal Code.
• Although the Petitioner asserted that, even assuming § 22.04(a) is divisible, the phrase “bodily injury” has a broader meaning under Texas law than the BIA’s definition of child abuse, none of the Petitioner’s proffered cases demonstrates that Texas would apply § 22.04(a) to crimes that do not align with the BIA’s definition of child abuse.
• Accordingly, the BIA did not err in determining that the Petitioner was subject to removal base on section 237(a)(2)(E)(i) of the Act (crime of child abuse).
• Finally, with regard to the Petitioner’s contention that his offense is not a CIMT, it is not necessary to address this issue because the Petitioner is subject to removal under section 237(a)(2)(E)(i) of the Act (crime of child abuse) which is separate and apart from 237(a)(2)(A)(i)(I) of the Act (CIMT).  In other words, the Petitioner would remain subject to removal whether or not his injury to a child offense is classified as a CIMT.

 

Commentary

Ponce v. Garland (June 9, 2023) No. 21-60530 is another example of applying the categorical and modified categorical classification methods to deportation grounds other than section 237(a)(2)(A)(iii) of the Act (any alien who is convicted of an aggravated felony at any time after admission).

As I have noted in previous blog articles, application of the categorical and modified categorical classification methods, does not seem to satisfy the appetite for clarity of those who are more comfortable with structure and order. 

Love of order is sometimes confounded with a taste for oppression, but at least order and structure allow for predictable results when applying the law to the facts.

Lack of clarity perceived in immigration law seems to have provoked Chief Judge Irving R. Kaufman to place immigration law in the same dubious category as tax law with this opening comment in one of his appellate decisions:

We have had occasion to note the striking resemblance between some of the laws we are called upon to interpret and King Minos's labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress's ingenuity in passing statutes certain to accelerate the aging process of judges.

See Lok v. Immigration and Naturalization Service, 548 F.2d 37 (2nd Cir. 1977).

Sometimes, categorical and modified categorical methods for classifying aggravated felonies baffle the most wary and sagacious adjudicators.

For example, rape, which is an aggravated felony under section 101(a)(43)(A) of the Act, is not defined in any federal statute that can serve as a generic federal offense for comparison to a State offense. 

The BIA wrestled its way out of this predicament with the invention of an imaginary generic federal rape offense by defining “rape” according to its “ordinary, contemporary meaning” in 1996, when “rape” was added to section 101(a)(43)(A) of the Act. Matter of Keeley, 27 I&N Dec. 146 (BIA 2017).  See, also, Matter of Alvarado, 26 I&N Dec. 895, at 897 (BIA 2016) (finding “it appropriate to adopt a generic definition [of a crime] based on how [it] was commonly defined” when section 101(a)(43) of the Act was enacted). 

This creative and imaginary patch to the aggravated felony classification procedure blends easily with the categorical and modified categorical approaches because it also appears as clear as mud.

Likewise, unless I am mistaken, there is no generic definition of a crime involving moral turpitude containing any specific elements with which to compare any State or federal offense. 

 

One aspect of categorical and modified categorical approaches, as applied in Ponce v. Garland, appears to favor the government.

For example, when a offense under review is broader in scope with regard to its elements than the generic federal offense or offense referenced in the aggravated felony definition, lawyers and judges must determine whether a realistic probability exists that the minimum criminal conduct punished under the statute would be subject to prosecution in the jurisdiction where the offense is defined.  See Moncrieffe v. Holder, 133 S. Ct. 1678, at 1684–85 (2013). 

To establish a realistic probability that a State would apply its statute to conduct that falls outside the generic definition of the crime, a petitioner “must at least point to his own case or other cases in which the state court in fact did apply the statute in the special (nongeneric) manner for which he argues.”  Gonzales v. Duenas-Alvarez, 549 U.S. 183, at 193 (2007).  See, also, United States v. Castillo-Rivera, 853 F.3d 218, at 222 (5th Cir. 2017) (en banc) (requiring a petitioner to show “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of the crime”).

In other words, after a respondent or petitioner establishes that the State offense for which the respondent or petitioner is convicted is broader than a generic offense as a matter of law, a review of case law in the State where the conviction occurred will be necessary to determine if an example of prosecution for minimum criminal conduct outside the definition of the generic offense exists.

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