137 F.4th 265
5th Cir.2025Background
- Erick Jose Sandoval Argueta, a lawful permanent resident of the U.S. from El Salvador, was convicted in Texas of online solicitation of a minor, believing he was soliciting a 13-year-old but actually communicating with an undercover officer.
- Based on this conviction, he was ordered removed for committing a "crime of child abuse" under 8 U.S.C. § 1227(a)(2)(E)(i).
- The government initially withdrew the "crime of child abuse" charge but later reasserted it after other grounds for removal were vacated or dropped.
- Argueta challenged the removability determination, arguing that without an actual child being involved, his conviction did not qualify as a "crime of child abuse."
- The Board of Immigration Appeals (BIA) and Immigration Judge (IJ) both relied on Fifth Circuit precedent (Adeeko v. Garland) to uphold removal; Argueta petitioned the Fifth Circuit for review.
- He also challenged the BIA’s denial of his motion for reconsideration as procedurally improper, claiming equitable tolling should apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is online solicitation (sting operation) a crime of child abuse under § 1227(a)(2)(E)(i)? | No actual child was involved, so doesn’t qualify; cited BIA's unreasoned Jimenez-Cedillo | Statute covers attempts, including stings; Adeeko controls | Yes, includes convictions even when no actual child was involved |
| Did Fifth Circuit precedent (Adeeko) still control post-Loper Bright? | Loper Bright overruled Chevron, so Adeeko not binding | Past precedents still control if statutory interpretation was correct | Issue not reached; panel agrees Adeeko's reading is correct |
| Was Argueta’s motion for BIA reconsideration properly denied as number-barred? | Equitable tolling should allow a second motion | Statute clearly bars multiple motions; rules strictly applied | BIA acted within discretion, denial reasonable |
| Does conviction under Texas Penal Code §33.021(c) categorically match “crime of child abuse”? | Statute is overbroad (covers 16-year-olds, not just under 16) | Prior case law establishes 18 as cutoff; arguments foreclosed | Prior precedent controls; Texas law matches federal requirement |
Key Cases Cited
- Adeeko v. Garland, 3 F.4th 741 (5th Cir. 2021) (holds Texas online solicitation conviction is a deportable "crime of child abuse")
- Munoz v. Intercontinental Terminals Co., L.L.C., 85 F.4th 343 (5th Cir. 2023) (statutory interpretation standards)
- Florez v. Holder, 779 F.3d 207 (2d Cir. 2015) (broad interpretation of "crime of child abuse" across circuits)
- Garcia v. Barr, 969 F.3d 129 (5th Cir. 2020) (reaffirming deference to BIA's broad reading of "crime of child abuse")
- Cruz v. Garland, 101 F.4th 361 (4th Cir. 2024) (attempted solicitation can be "crime of child abuse" even without a child victim)
- Shroff v. Sessions, 890 F.3d 542 (5th Cir. 2018) (intent to exploit a minor suffices for removal)
- Zhao v. Gonzalez, 404 F.3d 295 (5th Cir. 2005) (standard of review for denial of motions to reconsider)