Adeeko v. GarlandAdeeko v. Garland
Before CLEMENT, HAYNES, and WILSON, Circuit Judges.
The Department of Homeland Security (DHS) charged Seyi Muyiwa Adeeko as being removable after he was convicted of online solicitation of a minor. An Immigration Judge (IJ) terminated Adeeko‘s removal proceedings, but the Board of Immigration Appeals (BIA) partially vacated the IJ‘s decision and remanded for further proceedings. On remand, the IJ ordered Adeeko removed. Adeeko now petitions this court for review. Finding no error, we DENY his petition.
I.
Adeeko, a native and citizen of Nigeria, entered the United States in September 2011 on a student visa. In March 2013, he acquired lawful permanent residence status. Approximately four years later, in January 2017, Adeeko pled guilty to online solicitation of a minor in violation of section 33.021(c) of the Texas Penal Code and was sentenced to ten years of community supervision and ordered to pay a $1,500 fine.
Based on this conviction, DHS charged Adeeko as being removeable from the United States pursuant to
Through counsel, Adeeko admittеd the factual allegations of the NTA and conceded removability. But he later filed a motion to withdraw his concession and to terminate the removal proceedings. In February 2018, the IJ granted Adeeko‘s motion, determining that his conviction was not a categorical match to the generic definition of “sexual abuse of a minor” or “child abuse” because § 33.021(c) does not require that the victim actually be a minor, only that the actor believe the victim to be a minor.
The Department of Homeland Security appealed, and the BIA affirmed in part, vacated in part, and remanded the matter to the IJ for further рroceedings. Relying on the Supreme Court‘s decision in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), the BIA agreed with the IJ that Adeeko‘s conviction under § 33.021(c) was not a categorical match to the generic definition of “sexual abuse of a minor” because, in the context of offenses that criminalize sexual conduct based solеly on the age of the participants, the generic federal definition requires that the victim be younger than 16. Nonetheless, the BIA held that Adeeko was removable under
Adeeko filed a pro se motion to reconsider, asserting that the BIA erred in determining that a violation of § 33.021(c) was a “crime of child abuse” under
The BIA denied the motion for reconsideration. The BIA determined that the Supreme Court in Esquivel-Quintana did not create a generic definition for all sexual offenses based on the agе of the victim and only applied to convictions for “sexual abuse of a minor” as set forth in
On remand, Adeeko requested an order of removal, and the IJ ordered him removed to Nigeria. Adeeko then filed a timely pro se petition for review with the Court of Appeals for the Tenth Circuit. See
After identifying potential issues with venue and jurisdiction over the petition, the Tenth Circuit transferred the petition to this court for review.
II.
In his petition for review (via a supplemental brief filed ten days after his initial brief), Adeeko contends that this court is precluded from reviewing his order of removal under SEC v. Chenery Corp., 318 U.S. 80 (1947), because the IJ and the BIA relied on Tenth Circuit precedent in making their decisions. Adeeko also asserts that his petition should be transferred back to the Tenth Circuit despite venue not being proper, for the same reason. Assuming we do have jurisdiction to consider his petition, Adeeko contends that the BIA abused its discretion in finding him removable under
We review these issues in turn. Questions of law are reviewed de novo, but we “defer to the [BIA‘s] reasonable interpretations of ambiguous provisions in immigration statutes and regulations.” Garcia v. Barr, 969 F.3d 129, 132 (5th Cir. 2020). Although the BIA is afforded considerable deference in interpreting the term “crime of child abuse, child neglect, or child abandonment,” the question of whether a particular offense renders a petitioner removable is reviewed de novo. See Cisneros-Guerrerro v. Holder, 774 F.3d 1056, 1058 (5th Cir. 2014).
A.
As a threshold matter, we have jurisdiction to consider Adeeko‘s petition for review. Construing his briefing liberally, Adeeko appears to assert that we are precluded from review pursuant to SEC v. Chenery Corp., 332 U.S. 194 (1947), which requires us to review an agency decision on the same grounds upon which it was made. Indeed, “we may usually only affirm the BIA on the basis of its stated rationale for ordering an alien removed from the United States,” Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010), but Adeeko has failed to demonstrate that this court would have to rely on another basis to affirm the BIA‘s decision. To the contrary, this court applies the same analysis as that conducted by the BIA in determining whether an offense constitutes a crime of child abuse under
Relatedly, Adeeko contends that we should transfer this case back to the Tenth Circuit becausе, even though venue is not proper, “all [of] his arguments before the [IJ] and the BIA[] focused on Tenth Circuit law, and . . . it‘s the right court to apply its precedent to the issue raised in this petition for review.” We disagree. As the Tenth Circuit‘s transfer of Adeeko‘s petition to this court makes clear, venue is proрer here—not in the Tenth Circuit—because Adeeko‘s removal proceedings were completed by an IJ sitting in a state of this circuit, Texas. Moreover, Adeeko is not harmed in any way by our review, which is de novo. Garcia, 969 F.3d at 132; see also Bianco v. Holder, 624 F.3d 265, 268 (5th Cir. 2010). And as stated by our sister circuits, when it comes to federal law, “no litigant has a right to have the interpretation of one federal court rather than that of another determine his case.” Ballesteros v. Ashcroft, 452 F.3d 1153, 1157 (10th Cir. 2006) (quoting Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993)). Adeeko‘s request for a change of venue is thus denied.
B.
Moving to the heart of the issue, Adeeko‘s primary contention is that the BIA erred in finding him removable under
In determining whether a state conviction qualifies as a crime of child abuse, we apply a “categorical approach.” Mellouli v. Lynch, 575 U.S. 798, 804-05 (2015); Garcia, 969 F.3d at 134. This means “we look not to the facts of the underlying case but instead to whether the statutory definition of the state crime ‘categorically fits within the “generic” federal definition’ of the removable offense.” Garcia, 969 at 134 (quoting Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)). “A state offense is a categorical match with a generic federal offense only if a conviction of the state offense would necessarily involve proving facts that would establish a violation of the generic federal offense.” Vetcher v. Barr, 953 F.3d 361, 366 (5th Cir.), cert. denied, 141 S. Ct. 844 (2020). In other words, we “must presume that the conviction rested upon nothing more than the least of the acts criminalized, and then determine whether even those аcts are encompassed by the generic federal offense.” Sarmientos v. Holder, 742 F.3d 624, 628 (5th Cir. 2014) (quoting Moncrieffe, 569 U.S. at 190-91). “Where there is a categorical match, a conviction under the state statute ‘triggers removal under the immigration statute.‘” Vazquez v. Sessions, 885 F.3d 862, 871 (5th Cir. 2018) (quoting Mellouli, 575 U.S. at 806).
As stated, the BIA has interpreted “crime of child abuse” broadly to mean “any offense involving an intentional, knowing, reckless, or criminally
negligent act or omission that constitutes maltreatment of a child or that impairs a child‘s physical or mental well-being, including sexual abuse or exploitation.” Velazquez-Herrera, 24 I&N Dec. at 512. The BIA has also clarified that this definition “is not limited to offenses requiring proof of injury to the child” but rather “is sufficiently broad to encompass endangerment-type crimes” as well. Soram, 25 I&N Dec. at 381, 383. With this in mind, we look to
Under
[a] person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly sоlicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.
(Emphasis added). This provision defines a “minor” as “an individual who is younger than 17 years of аge; or an individual whom the actor believes to be younger than 17 years of age.”
Taking all of this into consideration, we agree with the BIA that Adeeko‘s conviction under
act or omission constitute “maltreatment of a child” because to be convicted, the perpetrator must request a minor to engage in illegal sex acts. See id. at 135-36; see also Mondragon-Gonzalez v. Att‘y Gen., 884 F.3d 155, 159-60 (3d Cir. 2018) (analyzing Pennsylvania solicitation statute in relation to
III.
In summary, Garcia forecloses Adeeko‘s argument that we should not give deference to the BIA‘s broаd interpretation of a “crime of child abuse” under
PETITION DENIED.
HAYNES, Circuit Judge, concurring:
Because we are bound by Garcia v. Barr, 969 F.3d 129, 132 (5th Cir. 2020), I concur in this opinion. However, I respectfully disagree with the determination in Garcia that the BIA‘s extremely broad construction of the phrase “crime of child abuse, child neglect, or child abandonment” is reasonable, particularly in light of the recent statutory analysis used by the Supreme Court in addressing a different immigration statute. Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480-85 (2021).1 That said, since we are bound by the rule of orderliness, Jacobs v. National Drug Intelligence Center, 548 F.3d 375, 378 (5th Cir. 2008), I agree with the application of Garcia to the relevant Texas criminal statute here.