36 F.4th 639
5th Cir.2022Background
- Petitioner Emmanuel Chukwuka Monsonyem, a Nigerian national admitted to the U.S. in 2009, was convicted in Texas (June 30, 2017) of felony "injury to a child" under Tex. Penal Code § 22.04(a)(3).
- DHS served a Notice to Appear charging removability under 8 U.S.C. § 1227(a)(2)(E)(i) (crime of child abuse).
- At an IJ hearing Monsonyem admitted the NTA facts but moved to terminate, arguing § 22.04(a) is categorically overbroad and indivisible as to victim class (child/elderly/disabled); DHS argued the statute is divisible and the modified categorical approach applies.
- The IJ sustained removability and denied Monsonyem’s application for cancellation of removal; the BIA affirmed and denied relief; Monsonyem appealed pro se to the Fifth Circuit.
- The Fifth Circuit considered (1) whether § 22.04(a) is a qualifying crime of child abuse (including divisibility/victim-class issue) and (2) whether the IJ erred in denying cancellation of removal; the court found divisibility and removability but held cancellation issues waived on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tex. Penal Code § 22.04(a) is categorically a crime of child abuse (overbreadth) | § 22.04(a) is categorically overbroad because it criminalizes injuries to children, elderly, and disabled persons | Government conceded overbreadth but argued statute is divisible so the modified categorical approach may identify a qualifying child-abuse offense | Court: § 22.04(a) is overbroad but divisible as to victim class; move to modified categorical approach |
| Whether the IJ could decide divisibility though parties did not frame that exact issue | IJ abused authority by ruling on divisibility not argued by parties | Issue was squarely presented in motion to terminate; court may independently construe law (Kamen) | Court: IJ properly considered divisibility |
| Whether, under the modified categorical approach, Monsonyem’s conviction is a crime of child abuse under § 1227(a)(2)(E)(i) | Conviction does not qualify for removability | Indictment and plea show injury to a child; record identifies child-victim alternative | Court: Modified categorical review of indictment/plea shows conviction was for injury to a child; removability affirmed |
| Whether IJ erred in denying cancellation of removal | Merits-based challenge to denial of cancellation and request for voluntary departure | Government defended denial and raised preservation/briefing defects | Court: Monsonyem’s cancellation arguments were not properly briefed on appeal and are waived; relief denied/dismissed |
Key Cases Cited
- Kamen v. Kemper Financial Servs., 500 U.S. 90 (1991) (court may identify proper legal construction even if parties advance different theories)
- Mathis v. United States, 579 U.S. 500 (2016) (distinguishing elements from means; divisibility test)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach for matching state offense to federal definition)
- United States v. Martinez-Rodriguez, 857 F.3d 282 (5th Cir. 2017) (discussion of categorical/modified categorical approaches)
- Garcia v. Barr, 969 F.3d 129 (5th Cir. 2020) (adopting BIA definition of "crime of child abuse" for § 1227(a)(2)(E)(i))
- United States v. Garrett, 24 F.4th 485 (5th Cir. 2022) (application of modified categorical approach to divisible statutes)