Ponce v. Garland, 70 F.4th 296

Justin Ponce, an LPR from El Salvador, pled guilty in Texas (2019) to injuring a child by omission under Texas Penal Code § 22.04(a) and received deferred adjudication, counseling, and community service.
DHS served a Notice to Appear charging removability under 8 U.S.C. § 1227(a)(2)(E)(i) (crime of child abuse) and § 1227(a)(2)(A)(i)(I) (CIMT).
An IJ found Ponce removable and denied asylum, withholding, CAT protection, and cancellation of removal; the BIA affirmed.
The BIA applied the categorical/modified categorical approaches, treating § 22.04(a) as divisible by victim class and relying on Ponce’s plea documents showing the victim was a child (14 or younger).
Ponce argued (1) § 22.04(a) is indivisible or, if divisible, overbroad compared to the BIA’s definition of child abuse; (2) his conviction is not a CIMT; and (3) the IJ erred denying asylum/CAT.
The BIA rejected overbreadth because Ponce failed to show a realistic probability Texas would apply § 22.04(a) to conduct outside the BIA’s child-abuse definition; it did not reach the CIMT issue. The Fifth Circuit denied the petition for review.

Issue	Ponce's Argument	Garland's Argument	Held
Whether § 22.04(a) is divisible by victim class	§ 22.04(a) is indivisible; cannot use modified categorical approach	Statute is divisible; courts may use modified categorical approach	Divisible — Monsonyem controls; modified categorical approach properly applied
Whether § 22.04(a) (even if divisible) is overbroad as to child-abuse element	"Bodily injury" under Texas is broader (e.g., minor pain) than BIA child-abuse definition; cites state cases	Ponce failed to show realistic probability of nongeneric application; (also argued failure to exhaust)	Overbreadth not shown — Ponce didn’t demonstrate state courts applied statute nongenerically; BIA’s conclusion affirmed
Whether failure to exhaust before the BIA bars review of overbreadth claim	Exhaustion requirement is not jurisdictional after Santos‑Zacaria; court may hear the claim	Argued Ponce failed to exhaust before the BIA	Court considered the claim (Santos‑Zacaria) and reached merits
Whether conviction is a CIMT / whether IJ erred denying asylum & CAT	Conviction does not constitute a CIMT; IJ erred in denying relief	BIA declined to decide CIMT because removal established on child-abuse ground; IJ’s denial of relief was upheld	CIMT issue not reached; BIA’s denial of asylum/CAT upheld and petition denied

Mathis v. United States, 579 U.S. 500 (2016) (framework for categorical and modified categorical approaches)
Monsonyem v. Garland, 36 F.4th 639 (5th Cir. 2022) (holding § 22.04(a) divisible by victim class)
United States v. Castillo‑Rivera, 853 F.3d 218 (5th Cir. 2017) (overbreadth requires realistic probability of nongeneric application)
Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (applicant must point to cases showing state applied statute nongenerically)
Santos‑Zacaria v. Garland, 143 S. Ct. 1103 (2023) (exhaustion in § 1252(d)(1) is a claim‑processing rule, not jurisdictional)
Villegas‑Sarabia v. Sessions, 874 F.3d 871 (5th Cir. 2017) (discussion of categorical approach in removal context)