IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 6, 2007
No. 06-60440 Charles R. Fulbruge III
Clerk
LUIS ARMANDO PEREZ-MUNOZ, also known as Luis A Perez
Petitioner
v.
PETER D KEISLER, Acting United States Attorney General
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 Bureau 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
No. 06-60440
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.
1
8 U.S.C.A. § 1101(a)(43)(F) provides: “As used in this chapter — the term ‘aggravated
felony’ means – a crime of violence (as defined in section 16 of Title 18 . . . ) for which the term
of imprisonment is at least one year.” 18 U.S.C.A. § 16 provides: “The term ‘crime of violence’
means — (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.”
2
“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)(3).
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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
3
INA § 212(h) is found in 8 U.S.C. § 1182. This section allows for, in certain
circumstances, a waiver of inadmissibility of an alien who was rendered inadmissible by virtue
of the fact that he committed a crime of moral turpitude. See § 1182(h) (referencing subsection
(a)(2)(A)(i)(I)). However, “[n]o waiver shall be granted under this subsection in the case of an alien
who has previously been admitted to the United States as an alien lawfully admitted for permanent
residence if . . . since the date of such admission the alien has been convicted of an aggravated felony
. . . .” Id.
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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
4
Perez argued for the first time in his brief to us that he had been denied due process
because of the court’s initial rejection of his motion to extend the time for appeal and/or for
reconsideration. Petitioner now agrees that, in view of the BIA’s consideration on the merits
of his substantive argument that he had not been convicted of an aggravated felony, that we
need not consider his due process argument.
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(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
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No. 06-60440
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.2d 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 meets
the aggravated felony criterion.
Id. at 464. We then pared down a Kansas aggravated battery statute and found
that one part of the statute qualified as a crime of violence. 462 F.3d at 465–67.
See also Calderon-Pena, 383 F.3d at 259 (where we held that it would be
permissible to pare down a statute looking to the charging papers).
We now turn to the question of whether it is permissible for us to pare
down the offense of injury to a child under § 22.04 by referring to the charging
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No. 06-60440
instrument in this case. Section 22.04 provides at least two ways in which the
offense can be committed. First, it may be committed by one who by act causes
injury to a child, and second, it may be committed by one who by omission causes
injury to a child. This statute is, therefore, divisible in that it defines multiple
offenses, at least one of which constitutes an aggravated felony. In this
circumstance, courts are authorized to apply a modified categorical approach.
See Larin-Ulloa, 462 F.3d at 464; Omari v. Gonzales, 419 F.3d at 308.
Under the modified categorical approach, which is authorized where the
statute of conviction is divisible, the Court may examine a short list of
documents to determine “whether the conviction was ‘necessarily’ for a
particular crime defined by the statute that meets the aggravated felony
criteria.” Larin-Ulloa, 462 F.3d at 464 (citing Shepard v. United States, 544 U.S.
13, 20–21 (2005)). In Omari, we explained that where an alien has pleaded
guilty to a divisible offense, the court may consider for this purpose the
“charging document, written plea agreement, transcript of plea colloquy and any
explicit factual finding by the trial judge to which the defendant assented.” 419
F.3d at 308 (quoting Shepard, 544 U.S. at 16).
We are persuaded that the BIA followed the teachings of our cases in
Calderon-Pena and Larin-Ulloa in using the charging instrument to pare down
the statute of conviction to determine which of the disjunctive elements — act
or omission — Perez pleaded guilty to committing. Although the factual
allegation in the Bill of Information that Perez struck a child with his hand
cannot be considered, the allegation can be used to determine under which
disjunctive element of Texas Penal Code § 22.04(a)(3) he stands convicted. See
United States v. Acuna-Cadres, 385 F.3d 875, 878-79 (5th Cir. 2004). The
charging instrument makes it clear to us that Perez was charged with an
intentional and knowing act rather than a passive omission. This distinguishes
today’s case from Gracia-Cantu in which the indictment charged the offense in
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No. 06-60440
the language of the statute, and we were unable to say, under the categorical
approach, that the offense was committed by an intentional act rather than an
omission.
We now turn to the final question: whether the offense as pared down
qualifies as a crime of violence under 18 U.S.C. § 16(b). See United States v.
Chapa-Garza, 243 F.3d 921, 924, 927 (5th Cir. 2001). Under § 16(b), an offense
is a crime of violence if it is a felony 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(b).
Petitioner argues that, even if the offense is pared down so that we can
conclude that petitioner committed the offense by intentional act, this does not
necessarily mean that a substantial risk of physical force will be presented.
Petitioner argues that this is true because he can advance examples of methods
by which this offense could be committed by intentional act without the use of
physical force. He gives as examples putting poison or other harmful substances
in a child’s food or drink. Therefore, petitioner argues a conviction under this
pared-down offense is not by its nature a crime of violence.
In James v. United States, the Supreme Court considered whether
attempted burglary is a “violent felony” under the final clause of the Armed
Career Criminals Act (“ACCA”), which provides that a violent felony is one that:
“otherwise involves conduct that presents a serious potential risk of physical
injury to another.” 127 S.Ct. at 1586, 1591 (2007) (emphasis added).5 James
argued that “it is not enough that attempted burglary ‘generally’ or ‘in most
cases’ will create a risk of physical injury to others” to meet this definition. Id.
at 1596–97. He argued that under the categorical approach, all cases of burglary
must present a serious potential risk of physical injury to another for the crime
5
This language is similar, though not identical, to the language in § 16(a) and (b).
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No. 06-60440
to be considered a violent felony under this clause of the ACCA. Id. at 1597.
The Court explained, however, that James’s argument “misapprehends” the
categorical approach. Id. “We do not view that approach as requiring that every
conceivable factual offense covered by a statute must necessarily present a
serious potential risk of injury before the offense can be deemed a violent felony.”
Id. Instead, the Court explained that:
The proper inquiry is whether the conduct encompassed by the
elements of the offense, in the ordinary case, presents a serious
potential risk of injury to another. One can always hypothesize
unusual cases in which even a prototypically violent crime might
not present a genuine risk of injury — for example, an attempted
murder where the gun, unbeknownst to the shooter, had no bullets
. . . or an extortion scheme where an anonymous blackmailer
threatens to release embarrassing personal information about the
victim unless he is mailed regular payments. In both cases, the risk
of physical injury to another approaches zero. But that does not
mean that the offenses . . . are categorically nonviolent.
Id. at 1597 (emphasis added). The Court concluded that James’s attempted
burglary conviction was a violent felony. Id. at 1597–98.
Similarly, in United States v. Thomas, the D.C. Circuit Court applied the
definition of crime of violence found in U.S.S.G. § 4B1.2(a), which includes
crimes that “involve[] conduct that presents a serious potential risk of physical
injury to another.” 361 F.3d 653, 656 (D.C. Cir. 2004). The Court explained that
in determining whether the crime of escape fits within the scope of this
guideline, a categorical approach is used to determine whether the conduct
“expressly charged . . . by its nature presents a serious potential risk of physical
injury.” Id. at 657 (citing United States v. Hill, 131 F.3d 1056, 1062 (D.C. Cir.
1997)).
The defendants argued that the escape offense does not fall within this clause
because it can be committed without force or violence. Id. at 658. However, the
Court explained:
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No. 06-60440
It is true, as defendants contend, that a person can escape without
force or serious risk of injury to anyone by simply walking away
from an unguarded halfway house; he may also peacefully end his
offense by waiting until the coast is clear and returning of his own
volition. But the same is true of the individual who commits
burglary of a dwelling: he can wait until the residents are on
vacation and enter the house unarmed. The same is true of the
arsonist, who, with care, can avoid serious risk of physical injury to
another by limiting his fires to isolated, abandoned buildings . . . .
And injury can likewise be avoided by the extortionist — who can
commit his crime by threatening to damage only the reputation of
his victim, and who can target only the meek and the weak.
Id. at 659–60. Thus, the Court concluded that even if one can hypothesize a non-
violent escape, this fact does not shield it from being a crime of violence. Id. at
660; see also United States v. Vigil, 334 F.3d 1215, 1223 (10th Cir. 2003) (“[T]he
possibility that a crime may be completed without injury is irrelevant to the
determination of whether it constitutes a crime of violence . . . .”) (emphasis
added); United States v. Franklin, 302 F.3d 722, 724 (7th Cir. 2002) (“The
benchmark should be the possibility of violent confrontation, not whether one
can postulate a non-confrontational hypothetical scenario.”).
Therefore, we conclude that Perez’s argument is without merit. Every
intentional act causing injury to a child need not be violent for a violation of this
part of the pared-down statute to be a crime of violence by its nature. As the
Supreme Court stated in James: “[T]he proper inquiry is whether the conduct
encompassed by the elements of the offense, in the ordinary case, presents a
serious potential risk of injury to another.” James, 127 S. Ct. at 1597 (emphasis
added).
We are satisfied that, in the ordinary case, when the defendant is charged
with causing bodily injury to a child by an intentional act, the perpetrator uses
or risks the use of physical force in committing the offense. Being able to
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No. 06-60440
imagine unusual ways the crime could be committed without the use of physical
force does not prevent it from qualifying as a crime of violence under § 16(b).
IV.
After paring down the Texas offense of injury to a child in § 22.04 by
reference to the charging instrument, it is clear that defendant committed the
offense by an intentional act rather than an omission. Although it may be
possible to commit this offense by intentional act without the use of physical
force (such as by placing poison in a child’s food or drink), this is not the
ordinary, usual way the crime is committed. The crime, when committed by an
act, is usually committed with the use of some force, or at least through conduct
that presents the substantial risk that force may be used. The BIA correctly
found that Perez had been convicted of an aggravated felony. We, therefore,
dismiss Perez’s petition.
PETITION DISMISSED.
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