Jose Garcia v. William Barr, U. S. Atty Gen ( 2020 )

Case: 19-60097 Document: 00515514195 Page: 1 Date Filed: 08/04/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 4, 2020
No. 19-60097
Lyle W. Cayce
Clerk
Jose Antonio Garcia,
Petitioner,
versus
William P. Barr, U. S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A091 384 335
Before Stewart, Clement, and Costa, Circuit Judges.
Edith Brown Clement, Circuit Judge:
Jose Garcia petitions for review of a final order of removal. The Board
of Immigration Appeals determined that Garcia’s conviction for sexual
assault of a child was a “crime of child abuse,” making him removable under
section 237(a)(2)(E)(i) of the Immigration and Nationality Act (“INA”),
8 U.S.C. § 1227(a)(2)(E)(i). We agree and thus deny Garcia’s petition.
I.
Garcia is a native and citizen of Mexico. He became a lawful
permanent resident of the United States in 1990. In 1999, when he was thirty-
Case: 19-60097 Document: 00515514195 Page: 2 Date Filed: 08/04/2020
No. 19-60097
five years old, Garcia raped and impregnated his fourteen-year-old
stepdaughter. He kept this a secret at first but eventually confessed to his wife
after the baby was born. Garcia was arrested for the rape seventeen years later
and charged with sexual assault of a child in violation of Texas Penal Code
section 22.011(a)(2). He was convicted in 2018 and sentenced to ten years’
probation.
The Department of Homeland Security then initiated removal
proceedings against Garcia, charging him as removable for having been
convicted of a “crime of child abuse, child neglect, or child abandonment”
under § 1227(a)(2)(E)(i). The immigration judge determined that Garcia was
removable because his conviction fell within the scope of a “crime of child
abuse,” as that term has been interpreted by the Board, and denied Garcia’s
application for cancellation of removal.
Agreeing with the immigration judge, the Board held that Garcia’s
conviction qualified as a crime of child abuse, rendering him removable under
§ 1227(a)(2)(E)(i). The Board also agreed that the circumstances didn’t
warrant discretionary cancellation of removal. As a result, the Board
dismissed Garcia’s appeal. This petition for review followed.
II.
We review de novo the Board’s legal conclusions, including whether
a particular state conviction renders an alien removable. See Orellana-Monson
v. Holder, 685 F.3d 511, 517 (5th Cir. 2012). In doing so, however, we defer to
the Board’s reasonable interpretations of ambiguous provisions in
immigration statutes and regulations. Id. When the Board issues its own
opinion without adopting the immigration judge’s reasoning, as it did here,
we confine our review to the Board’s decision. Enriquez-Gutierrez v. Holder,
612 F.3d 400, 407 (5th Cir. 2010). With limited exceptions, we may uphold
that decision only on the basis of the Board’s stated rationale. Id.
2
Case: 19-60097 Document: 00515514195 Page: 3 Date Filed: 08/04/2020
No. 19-60097
III.
Garcia challenges the Board’s decision on two grounds. First, he
argues that the Board’s interpretation of a “crime of child abuse” is not
entitled to deference. Second, he argues that his conviction for sexual assault
of a child under Texas Penal Code section 22.011(a)(2) is not a categorical
match to a “crime of child abuse,” as defined by the Board. These are issues
of first impression in this circuit.
A.
We first decide whether to defer to the Board’s interpretation of a
“crime of child abuse.” The Board’s precedential interpretations of
immigration statutes may be entitled to deference under Chevron U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Ali v.
Lynch, 814 F.3d 306, 309 (5th Cir. 2016). Deciding whether deference is due
involves a familiar two-step test. First, applying ordinary tools of statutory
construction, we must determine “whether Congress has directly spoken to
the precise question at issue.” Chevron, 467 U.S. at 842–43, 843 n.9. If so,
the statute’s plain meaning controls, regardless of what the Board says. But
if the statute is “silent or ambiguous,” then we proceed to step two. Id. at
843. There, we must determine whether the Board’s interpretation is “based
on a permissible construction of the statute.” Id. The Board’s interpretation
need not be the only possible interpretation—or even the best interpretation;
it need only be a reasonable one. Entergy Corp. v. Riverkeeper, Inc., 556 U.S.
208, 218 (2009); accord Chevron, 467 U.S. at 843 n.11. If the Board’s
interpretation reasonably resolves a genuine statutory ambiguity, then it
deserves Chevron deference.
We have not yet addressed whether to give Chevron deference to the
Board’s interpretation of a “crime of child abuse,” and our sister circuits are
split on this issue. Compare Alvarez-Cerriteno v. Sessions, 899 F.3d 774, 781
3
Case: 19-60097 Document: 00515514195 Page: 4 Date Filed: 08/04/2020
No. 19-60097
(9th Cir. 2018) (deferring to the Board’s interpretation), and Mondragon-
Gonzalez v. Att’y Gen., 884 F.3d 155, 159 (3d Cir. 2018) (same), and Pierre v.
U.S. Att’y Gen., 879 F.3d 1241, 1251 (11th Cir. 2018) (same), and Florez v.
Holder, 779 F.3d 207, 213–14 (2d Cir. 2015) (same), with Ibarra v. Holder, 736
F.3d 903, 918 (10th Cir. 2013) (rejecting the Board’s interpretation).
Congress added § 1227(a)(2)(E)(i) to the INA in 1996. See Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No.
104-208, § 350, 110 Stat. 3009-546, 3009-639 to -640. Under
§ 1227(a)(2)(E)(i), “[a]ny alien who at any time after admission is convicted
of a crime of domestic violence, a crime of stalking, or a crime of child abuse,
child neglect, or child abandonment is deportable.” 8 U.S.C.
§ 1227(a)(2)(E)(i). Congress chose to define a “crime of domestic violence”
in detail, referencing a specific federal statute and incorporating other family-
violence laws. See id. But Congress left the term “crime of child abuse”
undefined, and the legislative history doesn’t plainly express its meaning.
See, e.g., Ibarra, 736 F.3d at 912. Nor is there any widely accepted definition
of that term. See id.; Florez, 779 F.3d at 211. Thus, the statute doesn’t speak
unambiguously to the question at issue. Cf. Rodriguez-Castro v. Gonzales, 427
F.3d 316, 319–20 (5th Cir. 2005) (concluding that undefined term “crime
involving moral turpitude” in INA was ambiguous).
Every circuit court to consider this issue has found the statute silent
or ambiguous on the meaning of a crime of child abuse. See, e.g., Pierre, 879
F.3d at 1249 (concluding that “the statute is silent”); Florez, 779 F.3d at 211
(having “little trouble concluding that the statutory provision is
ambiguous”); Ibarra, 736 F.3d at 910 (acknowledging that “the statutory
text . . . does contain some ambiguity”). We too conclude that Congress left
the interpretation of this provision to the Board and turn to the second step
of the inquiry.
4
Case: 19-60097 Document: 00515514195 Page: 5 Date Filed: 08/04/2020
No. 19-60097
The Board has fleshed out the meaning of a crime of child abuse in
two precedential decisions: Matter of Velazquez-Herrera, 24 I. & N. Dec. 503
(B.I.A. 2008), and Matter of Soram, 25 I. & N. Dec. 378 (B.I.A. 2010). In
Velazquez-Herrera, the Board began by considering the history of
§ 1227(a)(2)(E)(i) and found it significant that this provision was the product
of “an aggressive legislative movement to expand the criminal grounds of
deportability” with the aim of “facilitating the removal of child abusers” and
those convicted of “maltreating or preying upon children.” 24 I. & N. Dec.
at 508–09. The Board then surveyed state and federal laws defining “child
abuse” that were in effect when the provision was enacted. Id. at 509–13.
Those authorities led to the conclusion that the term “crime of child abuse”
should be interpreted “broadly to mean 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.” Id. at 512. This definition
embraces many crimes, including those that entail infliction of “mental or
emotional harm,” “sexual abuse, including direct acts of sexual contact,” or
“the use or exploitation of a child as an object of sexual gratification.” Id. For
purposes of this definition, a “child” is anyone under the age of eighteen. Id.
The Board later clarified in Soram that its definition of a crime of child
abuse “is not limited to offenses requiring proof of injury to the child.” 25 I.
& N. Dec. at 381. The phrase “crime of child abuse, child neglect, or child
abandonment” expresses a “unitary concept.” Id. The Board’s definition
“describes the entire phrase” and “is sufficiently broad to encompass
endangerment-type crimes” as well. Id. at 381, 383.
Garcia contends that the Board’s interpretation is too broad. In Ibarra
v. Holder, the only case that hasn’t deferred to the Board’s interpretation, the
Tenth Circuit criticized the Board for failing to confine its analysis to criminal
statutes. 736 F.3d at 910–12. The court reasoned that the Board’s reliance on
5
Case: 19-60097 Document: 00515514195 Page: 6 Date Filed: 08/04/2020
No. 19-60097
civil statutes led to the inclusion of “non-injurious conduct done with a mens
rea of only criminal negligence,” which many states didn’t criminalize at the
time. Id. at 915. But see Florez, 779 F.3d at 212–13 (finding reasoning in Ibarra
to be flawed). The Tenth Circuit’s reading of a “crime of child abuse” may
be reasonable; it might even be more reasonable than the Board’s. But the
question isn’t whether the Board’s interpretation is the best—only whether
it is reasonable. Entergy Corp., 556 U.S. at 218. The Board’s interpretation,
which is consistent with the purpose behind this ground for removal, is
reasonable. Mondragon-Gonzalez, 884 F.3d at 159; Florez, 779 F.3d at 211. 1
Garcia also argues that the Board should reconsider its definition of a
crime of child abuse in light of Esquivel-Quintana v. Sessions, 137 S. Ct. 1562
(2017). The issue in that case was whether an alien’s conviction under a
statutory-rape law that defined a “minor” as anyone younger than eighteen
qualified as “sexual abuse of a minor,” which is an “aggravated felony” that
would render the alien removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Id. at
1567. The Court held that it did not. Based on the designation of “sexual
abuse of a minor” as an aggravated felony like murder and rape, a related
federal statute that was limited to victims younger than sixteen, and the fact
that most states set the age of consent at sixteen for statutory-rape offenses,
the Court held that the generic federal definition of “sexual abuse of a
minor” in the context of statutory rape requires that the victim be younger
than sixteen. Id. at 1568–72.
1
Because the state conviction at issue here requires a minimum mens rea of
knowing or intentional, Tex. Penal Code Ann. § 22.011(a)(2) (West 2018), the
Board’s inclusion of criminally negligent, non-injurious conduct—which is what the Tenth
Circuit deemed unreasonable—doesn’t affect our analysis. See Mondragon-Gonzalez, 884
F.3d at 159 n.3.
6
Case: 19-60097 Document: 00515514195 Page: 7 Date Filed: 08/04/2020
No. 19-60097
Esquivel-Quintana has no application here. The Court’s narrow
holding didn’t relate to the child-abuse provision in § 1227(a)(2)(E)(i),
mandate a particular approach to statutory interpretation, or cast doubt on
the Board’s definition of a crime of child abuse. See Matthews v. Barr, 927
F.3d 606, 614–16 (2d Cir. 2019). And because the statutory text there was
unambiguous—unlike the child-abuse provision here—that case doesn’t
affect our Chevron analysis. See Esquivel-Quintana, 137 S. Ct. at 1572.
The Board’s interpretation of a “crime of child abuse, child neglect,
or child abandonment” is a reasonable reading of a statutory ambiguity.
Whether we would have read the statute the same way is beside the point.
We therefore join the Second, Third, Ninth, and Eleventh Circuits in holding
that the Board’s interpretation is entitled to Chevron deference.
B.
We next consider whether Garcia’s conviction under Texas Penal
Code section 22.011(a)(2) falls within the Board’s definition of a crime of
child abuse. Although we give deference to the Board’s definition of a crime
of child abuse, we review de novo whether a particular state crime fits that
definition. Sarmientos v. Holder, 742 F.3d 624, 627 (5th Cir. 2014).
To determine whether a state conviction renders an alien removable,
we generally apply the “categorical approach.” Mellouli v. Lynch, 135 S. Ct.
1980, 1986 (2015). Under that approach, we look not to the facts of the
underlying case but instead to whether the statutory definition of the state
crime “categorically fits within the ‘generic’ federal definition” of the
removable offense. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). Because
this inquiry focuses on what the state conviction “necessarily involved,”
rather than on the alien’s actual conduct, we presume that the conviction
rested on nothing more than “the minimum conduct criminalized by the
state statute.” Id. at 190–91.
7
Case: 19-60097 Document: 00515514195 Page: 8 Date Filed: 08/04/2020
No. 19-60097
When the state statute of conviction contains “several different
crimes, each described separately,” we may apply the “modified categorical
approach,” which permits us to determine which particular offense the alien
was convicted of by examining certain judicial records, such as the charging
document. Mellouli, 135 S. Ct. at 1986 n.4 (quoting Moncrieffe, 569 U.S. at
191). Here, the record of conviction indicates, and the parties agree, that
Garcia was convicted under section 22.011(a)(2) of the Texas Penal Code. So
we limit our review to that subsection.
Section 22.011(a)(2) of the Texas Penal Code criminalizes various
sexual acts with a child younger than seventeen. See Tex. Penal Code
§ 22.011(a)(2), (c)(1). For example, a person commits an offense if he
“intentionally or knowingly . . . causes the penetration of the anus or sexual
organ of a child by any means.” Id. § 22.011(a)(2)(A). A person also commits
an offense if he “intentionally or knowingly . . . causes the sexual organ of a
child to contact or penetrate the mouth, anus, or sexual organ of another
person.” Id. § 22.011(a)(2)(C). But it is a defense that the victim was at least
fourteen years old and “the actor was not more than three years older than
the victim.” Id. § 22.011(e). The minimum conduct criminalized, then,
would be deliberate acts of sexual contact between a victim who is almost
seventeen and a perpetrator who just turned twenty. See id. § 22.011(a)(2),
(c)(1), (e).
Garcia’s state conviction falls squarely within the Board’s generic
definition of a crime of child abuse. First, section 22.011(a)(2) meets the
Board’s requirement that the offense be committed against a person under
the age of eighteen. See Velazquez-Herrera, 24 I. & N. Dec. at 512. To be
convicted, the perpetrator must have sexually assaulted a person under the
age of seventeen. Tex. Penal Code § 22.011(a)(2), (c)(1). Second,
section 22.011(a)(2) exceeds the Board’s requirement of an act done with at
least criminal negligence. See Velazquez-Herrera, 24 I. & N. Dec. at 512. To
8
Case: 19-60097 Document: 00515514195 Page: 9 Date Filed: 08/04/2020
No. 19-60097
be convicted, the perpetrator must act “intentionally or knowingly.” Tex.
Penal Code § 22.011(a)(2). Third, section 22.011(a)(2) meets the Board’s
requirement of an act that “constitutes maltreatment of a child or that
impairs a child’s physical or mental well-being, including sexual abuse or
exploitation.” Velazquez-Herrera, 24 I. & N. Dec. at 512. To be convicted,
the perpetrator must have engaged in acts involving direct sexual contact
with a child. Tex. Penal Code § 22.011(a)(2).
Garcia contends that that the Texas crime doesn’t match the Board’s
definition for two reasons. First, he argues that the Texas crime is broader
because it doesn’t require knowledge of the child’s age. True, sexual assault
of a child is a crime in Texas “regardless of whether the person knows the
age of the child at the time.” Id. But the Board’s mens rea requirement
applies only to the act, not the child’s age. See Velazquez-Herrera, 24 I. & N.
Dec. at 512 (requiring “an intentional, knowing, reckless, or criminally
negligent act” (emphasis added)); Jimenez-Juarez v. Holder, 635 F.3d 1169,
1171 (9th Cir. 2011) (holding that state crime involving sexual contact with a
child, without requiring knowledge of child’s age, met mens rea requirement
because it required an intentional act). The age of the victim is a separate
element. See Soram, 25 I. & N. Dec. at 385 (holding that state crime qualified
as child abuse because it required “a knowing or reckless act, and the juvenile
status of the victim [was] an element of the offense”). Because the Texas
crime requires an intentional or knowing act, it meets the Board’s
requirement.
Next, Garcia claims that the Texas crime is broader because it lacks
an element of harm. This argument is untenable. The Board’s definition
requires an act that constitutes maltreatment or that impairs a child’s
physical or mental well-being, which explicitly includes “direct acts of sexual
contact” and sexual “exploitation of a child.” Velazquez-Herrera, 24 I. & N.
Dec. at 512. In other words, sexual contact and sexual exploitation necessarily
9
Case: 19-60097 Document: 00515514195 Page: 10 Date Filed: 08/04/2020
No. 19-60097
involve acts that impair a child’s physical or mental well-being. Id. The Texas
crime involves direct acts of sexual contact, see Tex. Penal Code
§ 22.011(a)(2), as well as sexual exploitation of a child, see In re B.W., 313
S.W.3d 818, 821 (Tex. 2010) (explaining that section 22.011(a)(2) was
enacted to protect children against sexual exploitation). Indeed, Texas law
recognizes that this crime is, by definition, harmful to a child. See Tex.
Fam. Code Ann. § 261.001(1)(E) (West 2019) (defining child abuse for
purposes of mandatory-reporting law to include “sexual conduct harmful to
a child’s mental, emotional, or physical welfare, including conduct that
constitutes . . . sexual assault under Section 22.011”). Thus, section
22.011(a)(2) satisfies this element.
We conclude that Garcia’s conviction under the Texas statute
necessarily means that he has been convicted of a crime of child abuse. Garcia
is subject to removal as a result, and the Board properly dismissed his appeal.
IV.
To sum up, we give Chevron deference to the Board’s reasonable
definition of the term “crime of child abuse” in § 1227(a)(2)(E)(i) and hold
that Garcia’s conviction for sexual assault of a child is categorically a crime
of child abuse, as defined by the Board. We therefore DENY Garcia’s
petition for review.
10