Case: 21-60530 Document: 00516780826 Page: 1 Date Filed: 06/09/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED June 9, 2023 No. 21-60530 Lyle W. Cayce ____________ Clerk Justin Enrique Ponce, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. ______________________________ Petition for Review of an Order of the Board of Immigration Appeals Agency No. A205 725 586 ______________________________ Before Elrod, Ho, and Wilson, Circuit Judges. Cory T. Wilson, Circuit Judge: Justin Ponce came to the United States from El Salvador as a teenager. While in high school, he inappropriately touched his younger female relative and was later charged under Texas Penal Code § 22.04(a) with injuring a child by omission. That conviction spawned immigration proceedings in which he was found removable by the Board of Immigration Appeals (BIA). Ponce seeks review of that decision. Case: 21-60530 Document: 00516780826 Page: 2 Date Filed: 06/09/2023 No. 21-60530 I. Ponce is a citizen of El Salvador. His status was adjusted to lawful permanent resident in 2014. In 2019, Ponce pled guilty to violating Texas Penal Code § 22.04(a)—injury to a child in the third degree.1 The Texas state court sentenced Ponce to five years of deferred adjudication, counseling, and 200 hours of community service. Following his state conviction, the Department of Homeland Security served Ponce with a Notice to Appear, asserting that his conviction made him removable under 8 U.S.C. § 1227(a)(2)(E)(i) (crime of child abuse) and § 1227(a)(2)(A)(i)(I) (crime involving moral turpitude (CIMT)). An Immigration Judge (IJ) held a hearing and found that Ponce was subject to removal. Ponce then applied for asylum, withholding of removal, protection under the Convention Against Torture (CAT), and cancellation of removal. On June 15, 2020, the IJ issued a detailed order and denied Ponce’s application for relief on all grounds. Ponce then appealed to the BIA and argued that (1) Texas Penal Code § 22.04(a) is indivisible, and even if divisible, it is overbroad and does not fit the generic federal definition of child abuse; (2) his conviction does not qualify as a CIMT; and (3) the IJ erred in denying his applications for asylum and relief under the CAT. To address Ponce’s first argument, the BIA analyzed § 22.04(a) using “the categorical approach,” which in the BIA’s words required the agency “to disregard the respondent’s actual offense conduct and to focus instead _____________________ 1 Ponce was convicted under § 22.04(f), but subsection (f) merely describes the degree of the felony for offenses under subsection (a). The BIA and the parties’ briefing refer to § 22.04(a) and § 22.04(f) interchangeably, but we reference § 22.04(a) because that is the specific Texas statute in dispute. 2 Case: 21-60530 Document: 00516780826 Page: 3 Date Filed: 06/09/2023 No. 21-60530 on the elements of his offense of conviction and the minimum conduct that has a realistic probability of being prosecuted[.]”2 The BIA concluded that § 22.04(a) was not a categorical match for the generic federal definition of the crime of child …
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