Adnan Shroff v. Jefferson Sessions, III

Case: 17-60042 Document: 00514473096 Page: 1 Date Filed: 05/15/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 17-60042 May 15, 2018 Lyle W. Cayce Clerk ADNAN ASGAR SHROFF, Petitioner, versus JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges. JERRY E. SMITH, Circuit Judge: Adnan Shroff petitions for review of an order of the Board of Immigration Appeals (“BIA”) deciding that his conviction of online solicitation of a minor is an aggravated felony that subjects him to removal. Because Esquivel- Quintana v. Sessions, 137 S. Ct. 1562 (2017), abrogates this court’s previous definition of a minor in this context, we grant review, reverse, and remand. Case: 17-60042 Document: 00514473096 Page: 2 Date Filed: 05/15/2018 No. 17-60042 I. Shroff was admitted to the United States as a lawful permanent resident in September 2009. In June 2016, he pleaded guilty of online solicitation of a minor in violation of Texas Penal Code § 33.021(c) 1 and was given deferred adjudication with ten years of community supervision. The Department of Homeland Security initiated removal proceedings in July 2016, stating that his offense rendered him removable under the Immigration and Nationality Act of 1952 (“INA”), 8 U.S.C. § 1101(a)(43)(A), for a conviction of murder, rape, or sexual abuse of a minor. Finding that Shroff’s offense (1) involved a minor, (2) was sexual in nature, and (3) was abusive, the BIA determined that his conviction qualified as sexual abuse of a minor under Contreras v. Holder, 754 F.3d 286, 293–95 (5th Cir. 2014), and dismissed Shroff’s appeal. II. We have no jurisdiction to review “any final order of removal against an alien who is removable by reason of having committed” an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). We do, however, review “constitutional claims or questions of law raised upon a petition for review,” such as whether a convic- tion qualifies as an aggravated felony. Id. § 1252(a)(2)(D); Larin–Ulloa v. Gon- zales, 462 F.3d 456, 460–61 (5th Cir. 2006). III. To determine whether a conviction under Texas Penal Code § 33.021(c) 1 The statute defines online solicitation of a minor as follows: A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person. TEX. PENAL CODE § 33.021(c). 2 Case: 17-60042 Document: 00514473096 Page: 3 Date Filed: 05/15/2018 No. 17-60042 qualifies as sexual abuse of a minor, we apply the categorical approach, looking to the statute of conviction and comparing the elements to those of the generic federal offense. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). The generic definition of sexual abuse ...

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