Case: 21-60578 Document: 00516259554 Page: 1 Date Filed: 03/30/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED March 30, 2022 No. 21-60578 Lyle W. Cayce Summary Calendar Clerk Miguel Saldana Perez, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A201 067 264 Before Higginbotham, Higginson, and Duncan, Circuit Judges. Per Curiam:* Miguel Saldana Perez, a native and citizen of Mexico, petitions for review of an order by the Board of Immigration Appeals (BIA) dismissing his appeal from the denial of his applications for cancellation of removal, 8 U.S.C. § 1229b(b), withholding of removal, and relief under the Convention * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-60578 Document: 00516259554 Page: 2 Date Filed: 03/30/2022 No. 21-60578 Against Torture (CAT). The BIA affirmed that his conviction under Texas Penal Code § 22.01(a)(1) constituted a “crime of domestic violence” under 8 U.S.C. § 1227(a)(2)(E)(i) thereby rendering him statutorily ineligible for cancellation of removal. § 1229b(b)(1)(C). On review, Saldana Perez contends, and the Government agrees, that intervening precedent holds otherwise. We review the BIA’s decision and consider the immigration judge’s decision only to the extent it influenced the BIA. Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018). Factual findings are reviewed under the substantial evidence test, meaning that this court may not overturn factual findings unless the evidence compels a contrary conclusion. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). Questions of law are reviewed de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). Although we generally lack jurisdiction to review the BIA’s discretionary decisions under § 1229b, we retain jurisdiction to review related questions of law. See 8 U.S.C. § 1252(a)(2)(B)(1), (a)(2)(D). To be eligible for cancellation of removal for nonpermanent residents, an applicant must not have been convicted for a “crime of domestic violence,” which “means any crime of violence” as defined by 18 U.S.C. § 16. §§ 1229b(b)(1)(C), 1227(a)(2)(E)(i). A crime of violence under § 16(a) is defined as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The Supreme Court recently held that offenses criminalizing reckless conduct do not qualify as violent felonies. Borden v. United States, 141 S. Ct. 1817, 1834 (2021). Because § 22.01(a)(1) can be violated by “recklessly caus[ing] bodily injury to another,” it is no longer a crime of violence. Id.; see 2 Case: 21-60578 Document: 00516259554 Page: 3 Date Filed: 03/30/2022 No. 21-60578 also United States v. Olvera-Martinez, 858 F. App’x 145, 146 (5th Cir. 2021). 1 Therefore, the BIA erred in determining that Saldana Perez was ineligible for cancellation of removal in light of his conviction under § 22.01(a)(1). Accordingly, before …
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