Villegas-Lopez v. Garland ( 2023 )

Case: 22-60377 Document: 00516912139 Page: 1 Date Filed: 09/28/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
September 28, 2023
No. 22-60377 Lyle W. Cayce
____________ Clerk
Rafael Villegas-Lopez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A047 437 100
______________________________
Before Jolly, Southwick, and Oldham, Circuit Judges.
Per Curiam: *
The Board of Immigration Appeals dismissed the petitioner’s appeal
from an immigration judge’s order sustaining a charge of removability based
on a state criminal conviction. The central issue before us is whether the
petitioner’s state conviction constitutes a “crime of child abuse, child
neglect, or child abandonment” under federal immigration law. We
conclude that it is. The petition for review is DENIED.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-60377
FACTUAL AND PROCEDURAL BACKGROUND
Rafael Villegas-Lopez, a native and citizen of Mexico, adjusted his
status to lawful permanent resident in May 2000. In January 2020, Villegas-
Lopez pleaded nolo contendere in Texas to criminal solicitation of a minor
under Texas Penal Code §§ 15.031 and 22.011. The state court ordered
deferred adjudication with 90 days of imprisonment and four years of
community supervision. In April 2020, the Department of Homeland
Security issued a notice to appear charging Villegas-Lopez with removability
on the basis of that conviction.
Villegas-Lopez admitted only that he was not a citizen of the United
States. The Immigration Judge (“IJ”) found all of the other allegations in
the notice to appear to be true. Villegas-Lopez sought cancellation of
removal. In August 2020, following a hearing, the IJ found that Villegas-
Lopez was removable but was eligible for cancellation. The IJ declined to
exercise discretion to cancel removal and ordered him removed.
Villegas-Lopez appealed to the BIA. In June 2022, the BIA affirmed
the IJ’s determination that Villegas-Lopez was removable and the IJ’s denial
of cancellation. The BIA determined that solicitation of a minor under Texas
Penal Code § 15.031(b) is categorically a “crime of child abuse, child neglect,
or child abandonment” as provided in 8 U.S.C. § 1227(a)(2)(E)(i).
Villegas-Lopez timely petitioned for review.
DISCUSSION
“We review the BIA’s decision and only consider the IJ’s decision to
the extent that it influenced the BIA.” Shaikh v. Holder, 588 F.3d 861, 863
(5th Cir. 2009). Determining whether a prior conviction constitutes a
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removable offense is a question of law; we review the BIA’s determination de
novo. See Adeeko v. Garland, 3 F.4th 741, 745 (5th Cir. 2021).
The only issue before us is whether Villegas-Lopez’s state conviction
is a removable offense. Villegas-Lopez argues his statute of conviction is
broader than the generic federal offense of “child abuse.” First, the statute
criminalizes attempts and does not specify any particular risk of harm.
Second, it does not require the involvement of an actual child.
We start with the relevant statutory background.
I. Statutory background
Under 8 U.S.C. § 1227(a)(2)(E)(i), an alien is removable if convicted
of “a crime of child abuse, child neglect, or child abandonment.” The
generic definition of that offense used by the BIA encompasses “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.”
Garcia v. Barr, 969 F.3d 129, 133 (5th Cir. 2020) (quoting Matter of Velazquez-
Herrera, 24 I. & N. Dec. 503, 512 (BIA 2008)). The BIA has explained that
“child abuse ‘is not limited to offenses requiring proof of injury to the
child.’” Id. at 133 (quoting Matter of Soram, 25 I. & N. Dec. 378, 381 (BIA
2010)).
Texas Penal Code § 15.031(b) defines “Criminal Solicitation of a
Minor” as follows:
[W]ith intent that an offense under Section . . . 22.011[, sexual
assault,] . . . be committed, the person by any means requests,
commands, or attempts to induce a minor or another whom the
person believes to be a minor to engage in specific conduct that,
under the circumstances surrounding the actor’s conduct as
the actor believes them to be, would constitute an offense
under [this section] or would make the minor or other believed
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by the person to be a minor a party to the commission of an
offense under one of those sections. 1
We will defer to the BIA’s interpretation of the meaning of “a crime of child
abuse” in the removal statute because there is some ambiguity, but “we
review de novo whether a particular state crime fits that definition.” Garcia,
969 F.3d at 134.
The parties agree that the “categorical approach” applies here.
Under that approach, we compare the state offense to the generic federal
offense, “look[ing] to the statutory definition of the [state] offense of
conviction, not to the particulars of an alien’s behavior.” Mellouli v. Lynch,
575 U.S. 798, 805 (2015). “A state offense is a categorical match with a
generic federal offense only if a conviction of the state offense would
necessarily involve proving facts that would establish a violation of the
generic federal offense.” Vetcher v. Barr, 953 F.3d 361, 366 (5th Cir. 2020)
(citation omitted). Therefore, this court “must presume that the conviction
rested upon nothing more than the least of the acts criminalized, and then
determine whether even those acts are encompassed by the generic federal
offense.” Sarmientos v. Holder, 742 F.3d 624, 628 (5th Cir. 2014) (quoting
Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013)). “Where there is a
categorical match, a conviction under the state statute ‘triggers removal
under the immigration statute.’” Vazquez v. Sessions, 885 F.3d 862, 871 (5th
Cir. 2018) (quoting Mellouli, 575 U.S. at 806).
We now address Villegas-Lopez’s arguments.
II. Attempts and risk of harm
Among the offenses under Section 15.031(b) are “attempts to induce”
an individual to engage in prohibited conduct. Villegas-Lopez argues that
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1
Section 22.011, the completed offense of sexual assault, is not at issue here.
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Section 15.031(b) encompasses “attempt convictions” that do not fall under
the generic federal offense. The argument is that the generic federal offense
requires a “completed” offense. He cites Matter of B-Q-, A XXX XXX 485
(BIA June 20, 2017), as support.
Section 15.031(b) falls under Title 4 of the Texas Penal Code, which
sets forth “Inchoate Offenses.” We agree with the BIA that Section
15.031(b) is not an attempt crime. Though the provision uses the word
“attempts,” it does not do so in the formal sense. Attempt crimes are
identified in a separate section. See TEX. PENAL CODE § 15.01 (Criminal
Attempt). Villegas-Lopez was not convicted under that section. The BIA
reasonably concluded that “[s]oliciting a child to engage in sexual conduct
necessarily involves the exploitation of a child’s vulnerabilities and
susceptibility to coercion — and is thus abusive.”
Matter of B-Q- is not to the contrary. That case involved a conviction
specifically under a state attempt statute. 2 In short, Section 15.031(b)’s
“attempts to induce” language does not remove it from the scope of the
generic federal offense.
Next, Villegas-Lopez asserts that Section 15.031(b) does not specify
any particular “risk of harm” to a child and is therefore not a categorical
match.
The Government argues that a “risk of harm” analysis is only
necessary when analyzing child-endangerment statutes. The BIA has held
that “because States use a variety of terms to describe the degree of threat
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2
It is true that Matter of B-Q- reasoned that the state statute was not a categorical
match in part because an individual could be convicted “even if the ‘child’ victim was a
fictious creation of an undercover police officer.” A XXX XXX 485 (BIA June 20, 2017).
We address the relevance of that feature in the next section.
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required under endangerment-type offenses, a State-by-State analysis is
appropriate to determine whether the risk of harm required by the
endangerment-type language in any given State statute is sufficient to bring
an offense within the definition of ‘child abuse’ under the” INA. Matter of
Mendoza Osorio, 26 I. & N. Dec. 703, 704 (BIA 2016) (emphasis added)
(citation and quotation marks omitted).
Texas punishes child-endangerment elsewhere in the penal code. See
TEX. PENAL CODE § 22.041 (Abandoning or Endangering Child). Because
Section 15.031(b) is not an endangerment statute, a risk of harm analysis is
not required. Villegas-Lopez has not identified other circumstances where
this argument is required.
III. Involvement of an actual child
Villegas-Lopez next argues that a conviction under Texas Penal Code
§ 15.031(b) does not require that the victim be a child, whereas the generic
federal offense of child abuse does. Thus, Villegas-Lopez argues that Section
15.031(b) is not a categorical match with the generic federal offense.
It is true that Section 15.031(b) does not require that a victim be a child
— only that a person “believes [another] to be a minor.” TEX. PENAL CODE
§ 15.031(b) (emphasis added). Texas courts have sustained convictions
under Section 15.031 where the victim was not a minor. 3
There is no indication that the federal statute allowing removal for
convictions of child abuse requires that the victim be a child. Villegas-Lopez
cites a series of unpublished BIA cases holding that a state statute was not a
_____________________
3
See, e.g., Shams v. State, 195 S.W.3d 346 (Tex. App.—Austin 2006, pet ref’d)
(affirming a Section 15.031 conviction that involved a cybercrimes investigator posing as a
minor); Chen v. State, No. 05-05-00206-CR, 2006 WL 1085729 (Tex. App.—Dallas Apr.
26, 2006, pet. ref’d) (same with undercover detective).
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categorical match with 8 U.S.C. § 1227(a)(2)(E)(i) where the state statute
did not require that a child be involved. The BIA holds that unpublished
decisions are not binding precedent. See Matter of Echeverria, 25 I. & N. Dec.
512, 519 (BIA 2011).
During oral argument, Villegas-Lopez contended a decision it had
simply cited in its briefing here on the issue of attempt crimes actually was
relevant on the separate issue that there needed to be an actual child involved
in the offense. See Matter of Jimenez-Cedillo, 27 I. & N. Dec. 782 (BIA 2020).
There, the BIA held that a Maryland state conviction was not a crime of child
abuse because “no actual child was ever involved.” Id. at 794. Though
barely mentioned in his brief here and not on this issue, the Jimenez-Cedillo
decision was the focus of supplemental briefing ordered by the BIA before
the ruling that is now before us. The BIA discussed its own decision and one
of ours, and then held that our decision controlled and no actual child needed
to be involved:
The respondent’s argument is foreclosed by the United States
Court of Appeals for the Fifth Circuit’s recent holding in
Adeeko v. Garland, 3 F.4th 741 (5th Cir. 2021). In Adeeko, the
Fifth Circuit rejected the argument that a similar Texas statute,
defining a minor as “an individual who is younger than 17 years
of age; or an individual whom the actor believes to be younger
than 17 years of age,” rendered the statute overbroad. Id. at
747 (quoting TPC § 33.021(a)(l)).
The BIA did not discuss or even cite Jimenez-Cedillo in its opinion,
though it did mention having required supplemental briefing. The
Government in its supplemental briefing sought to limit Jimenez-Cedillo by
arguing that, prior to that opinion, “the Board had never stated, much less
held, in a precedent that an actual child must be involved in a crime of child
abuse.” Villegas-Lopez does not cite to any other prior opinions. We see
merit in the Government’s argument that the BIA’s statement on the last
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page of its opinion in Jimenez-Cedillo is cursory and without explanation. See
Jimenez-Cedillo, 27 I. & N. Dec. at 794 (saying it could not hold that the
respondent was “convicted of a crime of child abuse . . . because no actual
child was ever involved in this case”).
The BIA had the arguments about its own decision before it in the
supplemental briefing, and none of the three members hearing the appeal
disagreed that Adeeko applied. Citing its own precedent, the BIA stated that
it “appl[ies] the law of the circuit in cases arising in that jurisdiction.” See
Matter of U. Singh, 25 I. & N. Dec. 670, 672 (BIA 2012). We conclude the
BIA did not err when it applied Adeeko as the controlling authority.
We now examine the broader question of whether Section 15.031(b) is
a categorical match with the generic federal offense of “child abuse.”
Section 15.031(b) requires an individual act with “intent,” which is greater
than the BIA’s requirement that the conduct be done with criminal
negligence. See Adeeko, 3 F.4th at 748. Moreover, Section 15.031(b), as we
described earlier, meets the generic offense’s requirement that conduct
constitutes “maltreatment of a child,” because the statute involves engaging
in communications for an illicit sexual purpose. See id. Thus, we agree with
the BIA that Section 15.031(b) is a categorical match with 8 U.S.C. §
1227(a)(2)(E)(i) and is therefore a removable offense.
The petition for review is DENIED.
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