Garcia v. Barr, No. 19-60097 (5th Cir. Aug. 4, 2020) (Stewart, Clement, Costa)

The BIA determined that Jose Garcia's conviction for sexual assault of a child constituted a "crime of child abuse" under 8 U.S.C. § 1227(a)(2)(E)(i):

As a result, the BIA found him removable under the INA.

The Fifth Circuit denied Garcia's petition for review, deferring under Chevron to the BIA's interpretation of "crime of child abuse, child neglect, or child abandonment" in § 1227(a)(2)(E)(i). In the process, the Court joined the 2d, 3d, 9th, and 11th Circuits in deferring to the Board's interpretation. Only the Tenth Circuit has rejected BIA's view of the statute:

The Fifth Circuit proceeded to hold that Garcia's conviction for sexual assault of a child is categorically a crime of child abuse under the BIA's broad definition of the statutory term. Accordingly, the Court denied Garcia's petition for review.

A couple of points in conclusion. First, I gave the Tenth Circuit's decision refusing to defer to the BIA a quick read. While I don't have time to get into it in any depth here, I can tell you the issue is quite interesting. If you're into immigration law and/or the current debate over the viability of Chevron deference in the immigration adjudication context, consider this opinion and the Tenth Circuit's Ibarra opinion mandatory reading.

Second, this case was decided at precisely the same time that I was reading a working draft of The Case Against Chevron Deference in Immigration Adjudication by Christopher J. Walker and Shoba Sivaprasad Wadhia, which is up on SSRN. It's a great article, and I highly recommend it to anyone interested in Chevron's future generally or the legitimacy of Chevron in the immigration adjudication context in particular.

Circuit Split Alert! Garcia v. Barr, No. 19-60097 (5th Cir. Aug. 4, 2020)
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