Carmona-Castillo v. Mukasey

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 20, 2008
No. 08-60198
Summary Calendar Charles R. Fulbruge III
Clerk
JUAN DE DIOS CARMONA-CASTILLO
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A91 284 061
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Juan De Dios Carmona Castillo (Carmona-Castillo), a native and citizen
of Mexico, petitions for review of an order by the Board of Immigration Appeals
(BIA) affirming the Immigration Judge’s (IJ) order that he be removed from the
United States. Carmona-Castillo argues that his third-degree felony conviction
under TEX. PENAL CODE § 22.04 for causing injury to a child does not constitute
aggravated felony that rendered him eligible for removal.
*
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should not be published and is not precedent except under the limited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.
No. 08-60198
The Immigration and Nationality Act lists as an “aggravated felony” a
“crime of violence (as defined in section 16 of Title 18, but not including a purely
political offense) for which the term of imprisonment is at least one year.”
Relevant to Carmona-Castillo’s petition for review, a crime of violence for
purposes of 18 U.S.C. § 16 is a felony that by its nature involves a substantial
risk that physical force against the person or property of another may be used
in the course of committing the offense.
The statute under which Carmona-Castillo was convicted – TEX. PENAL
CODE § 22.04 – criminalizes acts or omissions that intentionally, knowingly,
recklessly, or negligently result in an injury to a child, and specifically prescribes
at least two ways in which the offense of injury to a child can be committed: a
violation of the statute can committed by an individual who causes an injury to
a child (1) by act or (2) by omission. See Perez-Munoz v. Keisler, 507 F.3d 357,
362 (5th Cir. 2007); § 22.04(a). Because the statute at issue is divisible in that
it defines multiple offenses, at least one of which constitutes an aggravated
felony, we may consider the charging documents, stipulated facts, or some other
formal finding of the relevant facts of conviction to determine if the Carmona-
Castillo’s particular crime meets the aggravated felony criteria. See Perez-
Munoz, 507 F.3d at 362; Larin-Ulloa v. Gonzalez, 462 F.3d 456, 464 (5th Cir.
2006).
In the instant case, the administrative record contains a copy of the
charging document and a certified copy of a record of conviction. The
adjudicative documents definitively establish that Carmona-Castillo pleaded
guilty in answer to an indictment charging that he caused bodily injury to a
child through an intentional and knowing act – by hitting her. This court
previously has held that an offense under § 22.04, when committed by a knowing
and intentional act, constitutes a crime of violence under § 16(b). See Perez-
Munoz, 507 F.3d at 364. Accordingly, Carmona-Castillo’s offense of conviction
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No. 08-60198
qualifies as an aggravated felony that constitutes a legitimate basis for his
removal. See id.Carmona-Castillo concedes that this court determined in Perez-Munoz that
§ 22.04 is a divisible statute that is subject to analysis under the modified
categorical approach, and that an intentional violation of § 22.04 constitutes a
crime of violence under § 16(b). He nonetheless asserts that Perez-Munoz was
wrongly decided and argues that we should not adhere to that decision’s flawed
reasoning. However, a panel of this court cannot overrule a prior panel’s
decision in the absence of intervening contrary or superseding authority by this
court sitting en banc or by the United States Supreme Court. United States v.
Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002). Carmona-Castillo identifies
no such contrary or superseding decisions. Thus, even if Carmona-Castillo is
correct that Perez-Munoz was erroneously decided, we must defer to Perez-
Munoz’s resolution of the specific issues that Carmona-Castillo raises in his
appeal.
Carmona-Castillo’s conviction for injury to a child under § 22.04 therefore
is punishable under § 16(b) as a crime of violence. Accordingly, Carmona-
Castillo committed an “aggravated felony” that rendered him removable under
§ 1227(a)(2)(A)(iii). Because Carmona-Castillo’s conviction qualifies as an
“aggravated felony” and he has failed to raise any other constitutional claim or
questions of law in his petition for review, we deny his petition.
PETITION FOR REVIEW DENIED.
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