Perez-Munoz v. Keisler

• Decision Date: 06 November 2007
• Docket Number: No. 06-60440.,06-60440.
• Citation: 507 F.3d 357
• Parties: Luis Armando PEREZ-MUNOZ, also known as Luis A. Perez, Petitioner, v. Peter D. KEISLER, Acting United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

507 F.3d 357

Luis Armando PEREZ-MUNOZ, also known as Luis A. Perez, Petitioner, v. Peter D. KEISLER, Acting United States Attorney General, Respondent.

No. 06-60440.

United States Court of Appeals, Fifth Circuit.

November 6, 2007.

Javier N. Maldonado, Alfonso Otero (argued), Mercado, Gonzalez & Otero, San Antonio, TX, for Petitioner.

Kelly J. Walls (argued), Thomas Ward Hussey, Dir., Linda Susan Wendtland, Luis Enrique Perez, U.S. Dept. of Justice, OIL, Washington, DC, Kristi Barrows, U.S. INS, Dallas, TX, Trey Lund, U.S. Imm. & Customs Enforcement, Field Office Dir., Attn: Carl Perry, New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before JOLLY, DAVIS and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Petitioner, Luis Perez-Munoz, (Perez) lodged this appeal from an order of the Board of Immigration Appeals (BIA) denying his motion for rehearing of an earlier order finding him removable from the country. The removal proceedings instituted against Perez charged that he was removable under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. Specifically, he was ordered removed pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony which constituted a crime of violence under 8 U.S.C. § 1101(a)(43)(F). The aggravated felony on which the removal order was based was his conviction for injury to a child under Texas Penal Code § 22.04(a)(3). The only substantial question in the case is whether the petitioner's conviction amounted to a crime of violence and thus an aggravated felony. Based upon our consideration of the statutory language of the offense of conviction as pared down by the allegations of the charging instrument, we conclude that petitioner was convicted of a crime of violence, and we affirm the order of the BIA. We therefore lack jurisdiction as to this appeal and dismiss Perez's petition. See DeLeon-Holguin v. Ashcroft, 253 F.3d 811, 813 (5th Cir.2001) (citing 8 U.S.C. § 1252(a)(2)(C)).

I.

Perez, a native and citizen of Mexico, was admitted to the United States as a lawful permanent resident in February 1975. In August 2005, the Department of Homeland Security (DHS) instituted removal proceedings against petitioner charging him under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien who was removable because he had been convicted of an aggravated felony that was a crime of violence as defined in 8 U.S.C. § 1101(a)(43)(F).¹ The DHS allegation that Perez was an aggravated felon was based on his October 14, 2002 conviction of injury to a child under Texas Penal Code § 22.04(a)(3).² The charging instrument (a criminal information) charged that petitioner intentionally and "knowingly cause[d] bodily injury to a child who was fourteen (14) years of age or younger, by striking the said child with the hand of the said defendant." The judgment of conviction reflected that petitioner pleaded guilty to the charge alleged in the information.

Petitioner challenged the charge of removability arguing that his conviction under Texas Penal Code § 22.04(a)(3) was not a crime of violence. The Immigration Judge (IJ) rejected petitioner's argument because the cases relied on by petitioner were distinguishable. The IJ pointed out that these cases addressed whether a § 22.04 offense is an aggravated felony but all dealt with crimes of omission. Based on the statute as pared-down by the use of the allegations of the charging instrument, the IJ ruled that petitioner's conviction under § 22.04 was for an intentional act causing bodily injury to a child, which was a violent crime and an aggravated felony. Petitioner then sought to file an application for adjustment of status, but the IJ determined that because petitioner's crime was an aggravated felony, he was ineligible to receive the INA § 212(h)³ waiver needed before he could file the adjustment application. The IJ ordered petitioner removed to Mexico, and petitioner appealed to the BIA.

On appeal, petitioner argued that his conviction was not for an aggravated felony pursuant to 8 U.S.C.A. § 1101(a)(43)(F) and that it was not a crime of moral turpitude. The BIA agreed with the IJ and thus concluded that petitioner had been convicted of a crime of violence and an aggravated felony for purposes of § 1101(a)(43)(F) and § 16(b), and it held that the crime was one involving moral turpitude. On February 8, 2006, the BIA dismissed petitioner's appeal.

On May 17, 2006, petitioner filed a motion asking the BIA to reconsider its February 8, 2006 order. He conceded that his motion was untimely, but he asked the Board to toll the filing deadline or reissue its decision to permit him to file a timely motion to reconsider. The BIA determined that petitioner's reconsideration motion was untimely, but it considered the motion sua sponte, and, after considering the merits of the motion, denied it.

While petitioner's reconsideration motion was still pending before the BIA, he filed in this Court a Notice of Petition for Review from the BIA's February 8, 2006 order dismissing his appeal. Petitioner later also filed a timely petition for review from the BIA's June 2006 order denying his reconsideration motion.

II.

Perez did not file a timely notice of appeal from the BIA's February 8, 2006 order dismissing his appeal. Perez's motion to reconsider was not timely filed, but the BIA exercised its discretion to consider the untimely motion sua sponte and considered the merits of petitioner's argument that he had not been convicted of an aggravated felony and therefore was not removable. Because petitioner filed a timely notice of appeal with this Court from the BIA's denial of his motion for reconsideration, we review de novo the BIA's order agreeing with the IJ that Perez's conviction for the Texas offense of injury to a child was an aggravated felony rendering him removable.⁴ See Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir. 2005) (we review de novo whether the statute falls within the INA definition).

III.

Perez argues that the BIA erred when it concluded that he was deportable following his conviction for the Texas crime of injury to a child, which the BIA concluded was a crime of violence. 8 U.S.C. § 1227(a)(2)(A)(iii) provides that any alien who is convicted of an aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(F), at any time after admission is deportable. 8 U.S.C. § 1227(a)(2)(A)(iii). Section 1101(a)(43)(F) defines the term aggravated felony as a "crime of violence (as defined in section 16 of Title 18 [United States Code] but not including a purely political offense) for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F). Therefore, in order for an offense to qualify as an aggravated felony for purposes of 8 U.S.C § 1227(a)(2)(A)(iii), an alien first must stand convicted of the offense; second, that offense must be classified as a crime of violence; and, third, the alien must have received a sentence of imprisonment of at least one year.

Petitioner concedes that he stands convicted for purposes of the immigration laws. Petitioner also concedes that he received a sentence of more than one year for his conviction. Therefore, the issue for decision narrows to whether the offense of conviction qualifies as a crime of violence under 18 U.S.C. § 16.

The Texas Penal Code defines the crime of injury to a child stating: "[A] person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child ... bodily injury." TEX. PENAL CODE § 22.04.

A crime of violence is defined as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and 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.

18 U.S.C. § 16. Both parties agree that the precise issue here is whether, based on the categorical approach, the crime to which Perez pleaded guilty is a crime of violence under subsection (b).

We start our analysis with Texas Penal Code § 22.04. Petitioner relies on United States v. Gracia-Cantu that held a conviction for the Texas offense of injury to a child under § 22.04 not to be, by its nature, a crime of violence within the scope of § 16(b). 302 F.3d 308, 312 (5th Cir. 2002). We made it clear in Gracia-Cantu, applying the categorical approach, that because the offense of injury to a child may involve conviction for an omission rather than an intentional act, the conviction did not qualify as a crime of violence. 302 F.3d at 312. For example, withholding food from a child or withholding medical care from a child is punishable under § 22.04, yet neither, as crimes of omission, would qualify as a crime of violence. We explained that such offenses do not present a substantial likelihood that the offender will intentionally employ force against the person or property of another in order to effectuate the commission of the offense. Id. at 312-13.

However, in cases since Gracia-Cantu, we have held that it is permissible to use a charging instrument to pare down a statute to determine if a violation of part of a statute constitutes a crime of violence when the statute as a whole categorically does not. See Larin-Ulloa v. Gonzales, 462 F.3d 456, 467-68 (5th Cir.2006); United States v. Calderon-Pena, 383 F.3d 254, 259 (5th Cir.2004) (en banc). In Larin-Ulloa, we explained that:

If the statute of conviction defines multiple offenses, at least one of which does not describe an aggravated felony, we apply a modified categorical approach, under which we may also examine certain additional documents ... to determine whether the conviction was necessarily for a particular crime defined by the statute that...