The Fifth Circuit Finds that Texas Conviction for Possessing a Synthetic Cannabinoid is Controlled Substance Offense

The Fifth Circuit has determined a respondent did not establish a realistic probability that a Texas conviction for possessing a synthetic cannabinoid criminalizes substances not found in the federal controlled substances schedules. Moreover, the court determined that a non-citizen cannot raise new state law authorities on appeal to meet the realistic probability test because the failure to raise those decisions before the agency renders the arguments unexhausted.

The full text of Alejos-Perez v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/22/22-60555-CV0.pdf

Fifth Circuit Finds that TX Aggravated Sexual Assault with a Deadly Weapon is Crime of Violence

The Fifth Circuit has determined that a Texas conviction for aggravated sexual assault with a deadly weapon is a crime of violence because it requires the use or attempted use of physical force.

The full text of Delgado-Victorio v. Garland can be found here: https://www.ca5.uscourts.gov/opinions/pub/23/23-60102-CV0.pdf

Fifth Circuit Finds that Texas Conviction for Injury to Child in Third Degree is Deportable Offense

The Fifth Circuit has affirmed that a Texas conviction for injury to a child in the third degree is a crime of child abuse, rejecting the petitioner’s contention that the definition of harm in the statute is broader than the generic definition of a crime of child abuse.

The full text of Ponce v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/21/21-60530-CV0.pdf

Fifth Circuit Remands to Determine if TX Hit and Run is a CIMT

The Fifth Circuit has remanded to determine if the minimum culpable conduct under a Texas hit and run conviction qualifies as a crime involving moral turpitude.

The full text of Zamaro-Silvero v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/21/21-60324-CV0.pdf

An amended opinion can be found here:

https://www.ca5.uscourts.gov/opinions/pub/21/21-60324-CV1.pdf

Fifth Circuit Finds that Texas Aggravated Robbery is Aggravated Felony

The Fifth Circuit has determined that a Texas conviction for aggravated felony qualifies as either a theft aggravated felony, an attempted theft aggravated, or a crime of violence aggravated felony.

The full text of Rodriguez Gonzalez v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/22/22-60091-CV0.pdf

Fifth Circuit Finds that TX Conviction for Felony Injury to a Child is Deportable Offense

The Fifth Circuit has determined that a Texas conviction for felony injury to a child is a crime of child abuse. The court recognized that the statute is overbroad because it criminalizes injury to the elderly and injury to the disabled, but also determined that the statute is divisible between between victim classes.

The full text of Monsonyem v. Attorney General can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60952-CV0.pdf

Fifth Circuit Finds that TX Aggravated Assault Conviction is not a Crime of Violence

The Fifth Circuit has determined that a Texas conviction for aggravated assault cannot qualify as a crime of violence in light of the Supreme Court’s decision in Borden v. United States because it includes a minimum mens rea of recklessness, and the statute is indivisible between the various applicable mens reas.

The full text of US v. Gomez Gomez can be found here:

https://www.ca5.uscourts.gov/opinions/pub/17/17-20526-CR1.pdf

Fifth Circuit Concludes that TX Conviction for Deadly Conduct is a CIMT

The Fifth Circuit has determined that a Texas conviction for deadly conduct qualifies as a crime involving moral turpitude, even though it includes reckless conduct. “Deadly conduct . . . demands an imminent threat of serious physical injury. Because its potential harm is grave, no countervailing, heightened mens rea is necessary for deadly conduct to constitute a CIMT; recklessness suffices.” The court also reaffirmed that the petitioner, who had initially entered the United States without inspection, was admitted to the United States at the time he adjusted status to lawful permanent residence.

The full text of Diaz Esparza v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60699-CV0.pdf

Eighth Circuit Finds that TX Aggravated Assault is not Violent Felony

The Eighth Circuit has determined that a Texas conviction for aggravated assault is not a violent felony because it encompasses reckless conduct. “Everyone agrees that the Texas law in question defines a single, indivisible offense that can be committed under any of three mental states—intentionally, knowingly, or recklessly.”

The full text of United States v. Hoxworth can be found here: https://ecf.ca8.uscourts.gov/opndir/21/08/191562P.pdf

Fifth Circuit Finds TX Drug Conviction to be Aggravated Felony

The Fifth Circuit has determined that a Texas statute criminalizing manufacture or delivery of cocaine (which includes an offer to sell cocaine) is an aggravated felony. The court noted that the statute requires an intent to sell, which is analogous to the intent to the distribute found in the federal Controlled Substances Act. The court recognized that its decision creates a circuit split with the Ninth Circuit on solicitation offenses.

The full text of Ochoa-Salgado v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60519-CV0.pdf

Fifth Circuit Finds that TX Conviction for Online Solicitation of a Minor is Crime of Child Abuse

The Fifth Circuit has determined that a Texas conviction for online solicitation of a minor is a crime of child abuse because it requires the knowing solicitation of a minor with the intention that the minor engage in a sex act. The court did not directly address the petitioner’s argument that the statute is overbroad because it defines a minor to include a person the defendant believes is under age 17.

The full text of Adeeko v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60703-CV0.pdf

Fifth Circuit Finds TX Drug Statute Indivisible

The Fifth Circuit has determined that Texas Health & Safety Code Penalty Group 2A contains at least one substance not listed in the federal drug statutes. Moreover, the court found no case law or statutory indicators that the substances are elements of the offense, and thus, concluded that the statute is indivisible. The court remanded for the agency to determine if there is a realistic probability that Texas prosecutes offenses involving the drug not listed in the federal schedules.

The full text of Alejos-Perez v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60256-CV0.pdf

Fifth Circuit finds that TX Conviction for Sexual Assault of a Child is a Crime of Child Abuse

The Fifth Circuit has determined that a Texas conviction for sexual assault of a child is a crime of child abuse. In so doing, the court deferred to the Board of Immigrations’ (Board) interpretation of this ground of deportability, articulated in its decisions in Matter of Velazquez-Herrera and Matter of Soram. The court noted that the statute at issue requires intentionally or knowingly engaging in acts involving direct sexual contact with a child, which falls squarely within the Board’s definition.

The full text of Garcia v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/19/19-60097-CV0.pdf

Fifth Circuit Construes TX Drug Conviction

The Fifth Circuit has acknowledged that a Texas cocaine statute, on its face, is broader than federal drug statutes, because it also criminalizes offenses involving the position isomers of cocaine. However, the court found that the petitioner did not prove a realistic probability that Texas courts prosecute offenses involving position isomers of cocaine.

The full text of Alexis v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60748-CV0.pdf

Fifth Circuit Applies Realistic Probability Test to Texas Drug Statutes

The Fifth Circuit acknowledged that Texas criminalizes actions related to 49 substances not found in the Controlled Substances Act, but determined that the petitioner did not demonstrate a reasonable probability that Texas prosecutes offenses related to these substances. The court further determined that the agency has the authority to determine, on a case-by-case basis, that a non-aggravated felony is a particularly serious crime.

The full text of Vetcher v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60449-CV0.pdf

Fifth Circuit Finds that TX Possession of Controlled Substance with Intent to Deliver is a Controlled Substance Violation

The Fifth Circuit has determined that a Texas conviction for possession of a controlled substance with intent to deliver is a controlled substance violation. In so doing, the court rejected the petitioner’s claim that the statute is overbroad because it includes offers to sell counterfeit drugs. Instead, the court found that a defendant must offer to sell a real drug, even if the actual drug delivered is counterfeit.

The full text of Olguin Padilla v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60509.0.pdf

Fifth Circuit Declines to Apply Diaz Lizarraga Retroactively

The Fifth Circuit has declined to retroactively apply the Board of Immigration Appeals’ decision in Matter of Diaz Lizarraga - which altered the definition of a crime involving moral turpitude as it applies to theft offenses - finding that doing so would impact the expectations of criminal defendants who accepted pleas to theft offenses in reliance on the prior rule.

The full text of Monteon-Camargo v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60345-CV0.pdf

Fifth Circuit Finds that Online Solicitation of a Minor is not an Aggravated Felony

The Fifth Circuit has determined that a Texas conviction for online solicitation of a minor is not categorically an aggravated felony in light of the Supreme Court's decision in Esquival Quintana.  "Given the structure of the Court’s reasoning regarding the age of consent and especially egregious crimes, Esquivel-Quintana’s generic definition of a minor as one under sixteen applies in the context of online solicitation of a minor."

The full text of Shroff v. Sessions can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60042-CV0.pdf

Eighth Circuit Finds that TX Conviction for Second-Degree Robbery is Crime of Violence and Violent Felony

The Eighth Circuit has determined that a Texas conviction for second-degree robbery is a crime of violence under the federal sentencing guidelines and a violent felony under the Armed Career Criminal Act.  The court determined that a conviction under the statute requires either actual bodily injury or a threat thereof.  Thus, it “has as an element the use, attempted use, or threatened use of violent physical force,” which “is force capable of causing physical pain or injury to another person.”  Given the similar definitions of a crime of violence aggravated felony in the immigration context and a crime of violence under the federal sentencing guidelines, this decision could have persuasive effect in immigration proceedings.

The full text of US v. Hall can be found here:
http://media.ca8.uscourts.gov/opndir/17/12/164479P.pdf

Fifth Circuit Finds that Texas Evading Arrest Conviction is not Categorically a CIMT

The Fifth Circuit has determined that a Texas conviction for evading arrest is not categorically a crime involving moral turpitude.  The court found the statute to be divisible, but determined that only the prong criminalizing flight in a vehicle involves moral turpitude.  

The full text of Laryea v. Sessions can be found here: 

http://www.ca5.uscourts.gov/opinions/pub/15/15-60722-CV0.pdf