Opinion
23-60083
07-10-2023
Juan Carlos Robles Ibarra, Petitioner, v. 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 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 38890. 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.
[*] This opinion is not designated for publication. See 5TH CIR. R. 47.5.