Robles Ibarra v. Garland

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 10, 2023
• Docket: 23-60083
• Status: Unpublished

Opinion

Case: 23-60083 Document: 00516814493 Page: 1 Date Filed: 07/10/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-60083 FILED Summary Calendar July 10, 2023 ____________ Lyle W. Cayce Clerk Juan Carlos Robles Ibarra,

Petitioner,

versus

Merrick Garland, U.S. Attorney General,

Respondent. ______________________________

Petition for Review of an Order of the Board of Immigration Appeals Agency No. A091 284 252 ______________________________

Before King, Haynes, and Graves, Circuit Judges. Per Curiam: * Juan Carlos Robles Ibarra, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (BIA) upholding the denial of his application for cancellation of removal under 8 U.S.C. § 1229b(a). The BIA determined that he was ineligible for such relief because his prior Texas conviction for attempted burglary of a habitation was an

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-60083 Document: 00516814493 Page: 2 Date Filed: 07/10/2023

No. 23-60083

aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(G) and (U). See § 1229b(a)(3). We review the BIA’s decision and consider the immigration judge’s decision only to the extent it influenced the BIA. Rodriguez Gonzalez v. Garland, 61 F.4th 467, 469 (5th Cir. 2023). Whether a conviction qualifies as an aggravated felony presents a question of law that is reviewed de novo. Garcia v. Holder, 756 F.3d 839, 842 (5th Cir. 2014). We have jurisdiction to review the question pursuant to 8 U.S.C. § 1252(a)(2)(D). See Fosu v. Garland, 36 F.4th 634, 636-37 (5th Cir. 2022). Under circuit precedent, the offense of burglary of a habitation under Texas Penal Code § 30.02 falls within the generic definition of burglary for purposes of the categorical approach. United States v. Herrold, 941 F.3d 173, 175-77, 182 (5th Cir. 2019) (en banc); United States v. Wallace, 964 F.3d 386, 388-90 (5th Cir. 2020). Accordingly, a § 30.02 offense for which the sentence was at least one year of imprisonment, as Robles Ibarra’s sentence was, qualifies as an aggravated felony under § 1101(a)(43)(G). See § 1101(a)(43)(G); Herrold, 941 F.3d at 175-77, 182; Wallace, 964 F.3d at 388- 90. Furthermore, Robles Ibarra’s conviction was an aggravated felony even though he was convicted only of attempted burglary of a habitation. See § 1101(a)(43)(U); Rodriguez Gonzalez, 61 F.4th at 470. He argues that a violation of § 30.02(a)(3) falls outside the generic definition of burglary because § 30.02(a)(3) lacks the requisite element of intent to commit a crime. The argument is unavailing, as it was addressed and rejected in Wallace, 964 F.3d at 388-90. The BIA did not err in determining that his Texas conviction for attempted burglary of a habitation constituted an aggravated felony pursuant to § 1101(a)(43)(G) and (U). Accordingly, the petition for review is DENIED.