Summary
The Fifth Circuit denied Edgar Eduardo Silva de Santiago’s petition for review of a Board of Immigration Appeals removal order. The court held that his New Mexico child-abuse conviction categorically matched the federal definition of a crime of child abuse under 8 U.S.C. § 1227(a)(2)(E)(i). The court also declined to remand for consideration of whether his aggravated-assault conviction was an aggravated felony because his multiple convictions and aggregate sentences made him statutorily ineligible for cancellation of removal.
Topics
Practice areas
Questions Presented
- Whether Silva de Santiago's conviction under N.M. Stat. Ann. § 30-6-1(D) categorically qualified as a crime of child abuse under 8 U.S.C. § 1227(a)(2)(E)(i).
- Whether the court should remand for the BIA to determine whether Silva de Santiago's aggravated-assault conviction constituted an aggravated felony crime of violence under 8 U.S.C. § 1227(a)(2)(A)(iii).
- Whether remand would be futile because Silva de Santiago was independently statutorily ineligible for cancellation of removal under the stop-time rule and the multiple-conviction inadmissibility provision.
Holdings
- Silva de Santiago failed to demonstrate a realistic probability that New Mexico would prosecute conduct under § 30-6-1(D)(3) that falls outside the generic federal definition of a crime of child abuse. Accordingly, the statute is a categorical match to § 1227(a)(2)(E)(i), and the child-abuse conviction supports removability.
- The court declined to reach the government's exhaustion argument and assumed without deciding that Silva de Santiago had exhausted the issue. It nevertheless denied remand because further proceedings would be futile.
Key quotations
“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.” (7)
“For this reason, Silva de Santiago has not demonstrated a realistic probability that New Mexico will prosecute conduct under § 30-6-1(D)(3) in the nongeneric manner he argues.” (9)
“Irrespective of whether Silva de Santiago’s conviction for aggravated assault constitutes a crime of violence, he is clearly statutorily ineligible for cancellation of removal.” (11)
Factual background
Silva de Santiago, a Mexican citizen and lawful permanent resident admitted in 2016, pleaded guilty in 2024 to eight New Mexico offenses and received aggregate sentences of approximately 21.5 years. One conviction involved child abuse under N.M. Stat. Ann. § 30-6-1(D), based on punching a child in the lip, and another involved aggravated assault with a deadly weapon. DHS charged him as removable, and he did not seek asylum, withholding, cancellation of removal, or other relief before the Immigration Judge.
Procedural history
DHS initiated removal proceedings after Silva de Santiago's New Mexico criminal convictions, charging removability based on child abuse and aggravated-felony grounds. The Immigration Judge sustained both charges, denied his motion to terminate, and ordered removal after Silva de Santiago declined to seek relief and reserved appeal. The BIA dismissed his appeal. The Fifth Circuit denied the petition for review.