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-
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                                   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.




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                                    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




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                                   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.




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                                   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



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                                      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.




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        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.




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         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



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 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



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                                   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.




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