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Unpub. BIA AgFel/COV Victory: TX Penal Code Sec. 22.04(a)(3)

July 06, 2022 (1 min read)

Hats way off to Amanda Waterhouse for this June 23, 2022 victory: "We agree with the respondent that the Texas Penal Code § 22.04(a)(3) is not divisible to [sic] between offenses committed by "act" and those committed by "omission." ... Finding a statute that criminalizes a mere "omission" to constitute a "crime of violence" for immigration purposes would be inconsistent with both Johnson and Stokeling. Accordingly, we find that the respondent's conviction for injury to a child in violation of Texas Penal Code § 22.04(a)(3), does not require "physical force'' as defined in 18 U.S.C. § l6(a), and interpreted in Johnson and Stokeling. Thus, the respondent has not been convicted of a crime of violence aggravated felony and is not barred from establishing her eligibility for cancellation of removal. In view of the above, the respondent's appeal will be sustained, and the record will be remanded to allow the respondent an oppo1tunity to apply for cancellation of removal or any other form of relief for which she may be eligible."

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