Case: 19-60703 Document: 00515923333 Page: 1 Date Filed: 07/01/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 1, 2021
No. 19-60703 Lyle W. Cayce
Clerk
Seyi Muyiwa Adeeko,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A204 401 058
Before Clement, Haynes, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
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.
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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 8 U.S.C. § 1227(a)(2)(A)(i), for
committing a crime of moral turpitude within five years of admission; 1
§ 1227(a)(2)(A)(iii), for being convicted of an aggravated felony under
§ 1101(a)(43)(A) (sexual abuse of a minor) and § 1101(a)(43)(U) (attempt or
conspiracy); and § 1227(a)(2)(E)(i), for being an alien convicted of a “crime
of child abuse, child neglect, or child abandonment.” Adeeko was detained
at a DHS facility in Otero, New Mexico, but his Notice to Appear (NTA) set
forth that he must appear before an IJ in El Paso, Texas. He appeared at his
first hearing via video conference.
Through counsel, Adeeko admitted 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.
1
DHS later withdrew the charge of removability for committing a crime of moral
turpitude.
2
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The Department of Homeland Security appealed, and the BIA
affirmed in part, vacated in part, and remanded the matter to the IJ for further
proceedings. 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 solely 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
§ 1227(a)(2)(E)(i) because § 33.021(c) was a categorical match to the generic
definition of a “crime of child abuse, child neglect, or child abandonment.”
Specifically, the BIA found that § 33.021(c) was a crime of child abuse
because it involved knowingly engaging in conduct with the intent of causing
the maltreatment of a child. 2
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 § 1227(a)(2)(E)(i). He contended that the offense defined in
§ 33.021(c) is broader than the BIA’s interpretation of “crime of child
abuse” because, pursuant to Esquivel-Quintana, the term “child” or
“minor” refers not to the age of legal competence, which is 18, but to the age
of consent, which is 16. Additionally, relying upon Ibarra v. Holder, 736 F.3d
903 (10th Cir. 2013), he argued that the BIA’s definition of child abuse set
forth in Matter of Velazquez-Herrera,
24 I. & N. Dec. 503 (BIA 2008), and
Matter of Soram,
25 I. & N. Dec. 378 (BIA 2010), was unreasonable and not
2
The state conviction at issue here requires a minimum mens rea of knowing,
§ 33.021(C) of the Texas Penal Code; thus, the BIA’s inclusion of criminally negligent,
non-injurious conduct does not affect our analysis.
3
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entitled to deference. 3 Finally, he asserted that that his conviction for
solicitation of a minor was not a removable offense under § 1227(a)(2)(E)(i)
because that offense falls within the aggravated felony definition for sexual
abuse of a minor. He later filed a sur-reply, asserting that § 33.021(c) is not
a categorical match to the generic definition of a crime of child abuse because
it does not require an explicit likelihood of harm.
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 age of the victim and only
applied to convictions for “sexual abuse of a minor” as set forth in
§ 1101(a)(43)(A). The BIA also concluded that because the decision in Ibarra
did not articulate a new definition of a crime of child abuse, the BIA was not
precluded from relying on the definition set forth in Velazquez-Herrera and
Soram when the offense at issue required a mens rea greater than criminal
negligence. Finally, the BIA held that online solicitation of a minor
necessarily involves the intent that a minor suffer maltreatment; that an
explicit likelihood of harm is not required for a conviction to constitute a
crime of child abuse; and that sexual offenses against minors can also
constitute crimes of child abuse under § 1227(a)(2)(E)(i).
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 8 U.S.C. § 1252(b)(1).
3
In Velazquez-Herrera, the BIA 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.” 24 I&N Dec. at 512. And in
Soram, the BIA 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.
25 I&N Dec. at 381, 383.
4
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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
§ 1227(a)(2)(E)(i). Alternatively, he asserts that because § 1227(a)(2)(E)(i)
is ambiguous, the rule of lenity requires the statute to be interpreted in his
favor.
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
5
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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
§ 1227(a)(2)(E)(i). See Garcia v. Barr,
969 F.3d 129, 134–36 (5th Cir. 2020).
Accordingly, we are not precluded from review. 4
Relatedly, Adeeko contends that we should transfer this case back to
the Tenth Circuit because, 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 proper 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.
4
We also note that there is no exhaustion issue here. The BIA reviewed the issue
raised by Adeeko on appeal and remanded to the IJ, who then ordered Adeeko removed.
In such instances where the BIA has already considered the issue that the petitioner is
raising, we do not require petitioners to file a motion to reopen to exhaust administrative
remedies prior to proceeding in federal court. See Dale v. Holder, 610 F.3d 294, 301 (5th
Cir. 2010).
6
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B.
Moving to the heart of the issue, Adeeko’s primary contention is that
the BIA erred in finding him removable under § 1227(a)(2)(E)(i). That
section provides that “[a]ny alien who at any time after admission is
convicted of . . . a crime of child abuse . . . is deportable.” As we noted
previously, the BIA has interpreted a 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.” Garcia v. Barr, 969 F.3d 129, 133 (5th Cir. 2020) (quoting
Velazquez-Herrera,
24 I&N Dec. at 512). Adeeko, however, asserts that we
should not give Chevron 5 deference to the BIA’s definition of “child abuse”
and that United States v. Rodriguez,
711 F.3d 541, 552 (5th Cir. 2013) (en
banc), requires us to apply a plain-meaning approach to define non-commonlaw offenses such as the one at issue. We disagree. Our more recent opinion
in Garcia,
969 F.3d 129, controls and forecloses this issue. In Garcia, we
joined several other circuits in holding that “[t]he Board’s interpretation of
a ‘crime of child abuse . . .’ is a reasonable reading of a statutory ambiguity”
and thus “is entitled to Chevron deference.”
Id. at 134. 6
5
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), set forth
a two-part test for determining when to give deference to agency interpretations of statutes.
When appropriate under Chevron,
[w]e accord deference to agencies . . . because of a presumption that
Congress, when it left ambiguity in a statute meant for implementation by
an agency, understood that the ambiguity would be resolved, first and
foremost, by the agency, and desired the agency (rather than the courts) to
possess whatever degree of discretion the ambiguity allows.
Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 740–41 (1996).
6
It likewise follows that the rule of lenity does not apply.
7
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The only remaining question then is whether Adeeko’s conviction for
online solicitation of a minor in violation of § 33.021(c) of the Texas Penal
Code falls within the BIA’s definition of a crime of child abuse. This is an
issue of first impression before our court. The government contends that
Adeeko has waived this issue and that we thus should not consider it. But we
conclude Adeeko sufficiently raised this issue—albeit intermingled within
his briefing on the deference issue—by noting the categorical approach
employed in such a determination and stating that § 33.021(c) “is not a
categorical match to the federal generic definition [of child abuse].”
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 acts 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
8
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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 § 33.021(c) of the Texas Penal Code.
Under § 33.021(c),
[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 solicits 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 age; or an individual whom the actor believes to
be younger than 17 years of age.” Tex. Penal Code § 33.021(a)(1). And
it is a defense to this provision if “the actor was not more than three years
older than the minor and the minor consented to the conduct.” Id. at
§ 33.021(e)(2). Accordingly, the minimum conduct criminalized would be
the knowing solicitation of a victim who is believed to be almost 17 by a
perpetrator who just turned 20. Garcia, 969 F.3d at 135 (analyzing another
Texas code provision with same age requirements).
Taking all of this into consideration, we agree with the BIA that
Adeeko’s conviction under § 33.021(c) is encompassed by the BIA’s generic
definition of child abuse. To begin, because § 33.021(c) requires that an
individual act “knowingly,” it exceeds the BIA’s requirement that the act be
done with at least criminal negligence. See Garcia, 969 F.3d at 135.
Moreover, § 33.021(c) meets the generic definition’s requirement that the
9
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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
§ 1226(a)(2)(E)(i) and concluding “a conviction would not occur under the
statute unless it had already been proven that the communication was
intended for an illicit sexual purpose, and this is sufficient to create a high
risk of harm to a child”). Finally, § 33.021’s definition of a minor does not
render the statute broader than § 1227(a)(2)(E)(i). Where § 33.021 provides
that a minor is an individual under (or believed to be under) 17 years of age,
for purposes of § 1227(a)(2)(E)(i), a child is any individual under the age of
18. Id. at 133. Accordingly, Adeeko’s conviction under § 33.021(c) falls
within the BIA’s definition of a crime of child abuse.
III.
In summary, Garcia forecloses Adeeko’s argument that we should not
give deference to the BIA’s broad interpretation of a “crime of child abuse”
under § 1227(a)(2)(E)(i). Further, Adeeko’s conviction under § 33.021(c) of
the Texas Penal Code falls within the BIA’s definition of a crime of child
abuse. Accordingly, the BIA did not err in determining that his conviction
for solicitation of a minor was a removable offense under § 1227(a)(2)(E)(i).
We therefore DENY Adeeko’s petition for review.
PETITION DENIED.
10
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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). 7 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.
1
This case did not involve application of Chevron deference but did address at
length the statutory construction of an immigration statute. Id. at 1484 (“We simply seek
the law’s ordinary meaning.”).
11
