Monsonyem v. Garland
| Decision Date | 07 June 2022 |
| Docket Number | 20-60952 |
| Citation | 36 F.4th 639 |
| Parties | Emmanuel Chukwuka MONSONYEM, Petitioner, v. Merrick GARLAND, U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Emmanuel Chukwuka Monsonyem, Temple, TX, Pro Se.
Colin James Tucker, Esq., Trial Attorney, Shahrzad Baghai, U.S. Department of Justice, Civil Division, Washington, DC, Office of Immigration Litigation, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Before Clement, Graves, and Costa, Circuit Judges.
Emmanuel Chukwuka Monsonyem, a native and citizen of Nigeria, was admitted to the United States on January 10, 2009, under the terms of an immigrant visa. On June 30, 2017, he was convicted in Texas state court of the felony offense of injury to a child, in violation of Texas Penal Code § 22.04(a)(3). On December 13, 2018, the Department of Homeland Security (DHS) served Monsonyem with a Notice to Appear (NTA), charging him with removability under 8 U.S.C. § 1227(a)(2)(E)(i), as an alien who, at any time after admission, was convicted of a crime of child abuse.
In an April 2019 hearing before an Immigration Judge (IJ), Monsonyem, appearing with counsel, admitted to the allegations set forth in the NTA but contested the charge of removability. He filed a motion to terminate, arguing that his Texas state conviction for injury to a child under § 22.04(a)(3) did not render him removable under § 1227(a)(2)(E)(i). Specifically, he argued that an offense under § 22.04(a) is categorically broader than child abuse because § 22.04(a) also criminalizes injury to an elderly person or a disabled individual. Further, he asserted that the modified categorical approach could not be applied to the statute because it is indivisible as to the victim class. The DHS opposed the motion, arguing that the statute is divisible and that under the modified categorical approach, his offense should be deemed a crime of child abuse. After hearing argument from the parties, the IJ sustained the charge of removability.
In August 2019, Monsonyem applied for cancellation of removal. He requested that the IJ exercise his discretion to grant him relief, arguing that, as required by statute, he had been lawfully admitted as a permanent resident for at least five years; he had resided in the United States continuously for seven years after his admission; and he had not been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a). After a hearing, the IJ denied Monsonyem's request for cancellation of removal, ordered him removed, and denied his request for voluntary departure.
Monsonyem appealed to the BIA, asserting numerous errors in the IJ's decision. On September 15, 2020, the BIA dismissed Monsonyem's appeal, denied his requests for cancellation of removal or voluntary departure, and ordered his removal.
Proceeding pro se, Monsonyem then submitted a petition for review to this court.
When reviewing a BIA decision, we consider legal questions, including jurisdictional issues, de novo. See Zhu v. Gonzales , 493 F.3d 588, 594 (5th Cir. 2007) ; Hadwani v. Gonzales , 445 F.3d 798, 800 (5th Cir. 2006) (per curiam). Findings of fact, on the other hand, are reviewed for substantial evidence. Zhu , 493 F.3d at 594. Under the substantial-evidence standard, we may not reverse factual findings unless the alien shows that "the evidence was so compelling that no reasonable factfinder could conclude against it." Wang v. Holder , 569 F.3d 531, 537 (5th Cir. 2009) ; see also 8 U.S.C. § 1252(b)(4)(B) (). While our review is limited to the BIA's decision, we will consider the IJ's decision to the extent it influenced the BIA. See Singh v. Sessions , 880 F.3d 220, 224 (5th Cir. 2018).
Monsonyem presents us with two overarching issues on appeal: (1) whether the BIA erred in affirming the IJ's finding that he was removable under § 1227(a)(2)(E)(i) due to his § 22.04(a) conviction; and (2) whether the IJ erred in denying his application for cancellation of removal. As a preliminary matter, we have jurisdiction to consider Monsonyem's petition even though the clerk's office received it 31 days after the BIA's decision. See Fosu v. Garland , No. 20-60749, 36 F.4th 634, 637-38 (5th Cir. June 7, 2022) (). We consider each issue in turn.
Monsonyem claims that the BIA erred in determining that § 22.04(a) serves as a qualifying crime of child abuse under § 1227(a)(2)(E)(i). According to him, § 22.04(a) is categorically overbroad and indivisible as to victim class, and the BIA erred in finding otherwise. Moreover, Monsonyem avers that neither party presented the issue of victim-class divisibility before the IJ; thus, the IJ abused his authority by ruling on that matter. The BIA, on the other hand, found that Texas' pattern jury instruction and caselaw supported the IJ's finding that § 22.04 is divisible as to victim class. Further, it rejected Monsonyem's argument that the IJ lacked authority to decide the divisibility issue because the parties did not present the issue. Instead, it found that the "[t]he issue of section 22.04(a)(3)'s divisibility was squarely presented by [Monsonyem's] motion to terminate." We agree with the BIA on both matters.
We begin with Monsonyem's second sub-issue first: whether the IJ was permitted to consider the divisibility issue. Kamen v. Kemper Financial Services, Inc. is on point. 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991). According to Kamen : "When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law." Id. at 99, 111 S.Ct. 1711. Here, Monsonyem's motion to terminate "squarely presented" the issue of the statute's divisibility. Thus, the BIA did not err in rejecting Monsonyem's claim that the IJ impermissibly ruled on the divisibility issue.
We now turn to the divisibility issue itself. When determining whether a state conviction renders an alien removable, we apply the categorical approach. Garcia v. Barr , 969 F.3d 129, 134 (5th Cir. 2020). "Under that approach, we look not to the facts of the underlying case but instead to whether the statutory definition of the state crime ‘categorically fits within the ‘generic’ federal definition’ of the removable offense." Id. (quoting Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ). "So long as the relevant statutes state a single, or indivisible, set of elements, application of the categorical approach is a rote exercise." United States v. Martinez-Rodriguez , 857 F.3d 282, 285 (5th Cir. 2017). That is not the case here.
To begin, we need the generic federal definition. Section § 1227(a)(2)(E)(i) does not define "crime of child abuse." Nonetheless, we have previously held that the BIA's definition of the term is a reasonable reading that is entitled to Chevron deference. Garcia , 969 F.3d at 134 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ). According to the BIA, the term "crime of child abuse" means "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." Matter of Velazquez-Herrera , 24 I. & N. Dec. 503, 512 (BIA 2008) ; see also Garcia , 969 F.3d at 133-34 (). We now must consider whether § 22.04(a) falls within this generic federal definition.
Section § 22.04(a) criminalizes "intentionally, knowingly, recklessly, or with criminal negligence" causing by act or "intentionally, knowingly, or recklessly" causing by omission bodily or serious mental injury to "a child, elderly individual, or disabled individual." The BIA concluded that "[t]here is no dispute," § 22.04(a) is categorically overbroad. The BIA is correct. While § 1227(a)(2)(E)(i) is concerned with crimes against children, § 22.04(a) is concerned with crimes against children and elderly and disabled individuals. Accordingly, § 22.04(a) is not "an equivalent to the generic offense." Martinez-Rodriguez , 857 F.3d at 285.
That § 22.04(a) is overbroad is not the end of the matter, however. If the state statute "sets forth elements in an alternative or disjunctive structure, it is considered divisible, and a second approach is available to [us]." Id. "Known as the modified categorical approach, this approach allows [us] to pare down a prior conviction under a divisible statute by consulting certain materials," such as the indictment, a written plea agreement, or the transcript of a plea colloquy. Id. This approach is only permitted if the relevant statute is divisible—i.e., if the statute lists out alternative elements, rather than alternative means. Id. ; see also Mathis v. United States , 579 U.S. 500, 517–18, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) (same). To distinguish elements from means, we ask whether a jury must agree on the statute's alternatives. Martinez-Rodriguez , 857 F.3d at 285 ; Mathis , 579 U.S. at 517–18, 136 S.Ct. 2243 ; see also United States v. Garrett , 24 F.4th 485, 489 (5th Cir. 2022) .
The BIA concluded that § 22.04(a) is divisible as to victim class and applied the modified categorical approach over Monsonyem's objection. We review the BIA's...
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