BIA Issues Amicus Invitation Regarding Texas Burglary Crime Of Violence. Briefs Due May 3, 2022.
On April 12, 2022, the Board of Immigration Appeals (BIA or Board) issued an amicus invitation to interested members of the public to file amicus curiae briefs discussing:
- Whether, in light of U.S. v. Herrold, F.3d 173 (5th Cir. 2019) (enbanc), and regardless of the specific mens rea of an underlying crime, the commission or attempted commission of a felony, theft, or an assault under Texas Penal Code §30.02(a)(3) necessarily supersedes or implicity contains generic burglary’s intent element, which requires an “intent to commit a crime” upon entry into a building or habitation.
- Whether the burglary statute under Texas Penal Code §30.02 covers more conduct than the generic offense of burglary because §30.02(a)(3) does not on its face require proof of internet to commit a crime at any time or at any point during the offense conduct. See Van Cannon v. United States, 890 F.3rd 656 (7th Cir. 2018).
- Whether the respondent’s conviction for attempted burglary under Texas Penal Code §30.02 is a “crime of violence” under INA §101(a)(43)(F) that meets the “physical force” element under 18 U.S.C. §16(a), as defined in Johnson v. United States, 559 U.S. 133, 140(2010), which neither Chavez-Mercado v. Barr, 946 F.3d 272, 274 n.2(5th Cir. 2020) nor the cases cited therein addressed.
Briefs are due Tuesday, May 3, 2022.
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