BIA Amicus Invitation: Texas Burglary; Crime of Violence; Due Date May 3, 2022

EOIR, Apr. 12, 2022

"ISSUES PRESENTED:

1. Whether, in light of U.S. v. Herrold, 941 F.3d 173 (5th Cir. 2019) (en banc), 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 implicitly contains generic burglary’s intent element, which requires an “intent to commit a crime” upon entry into a building or habitation.

2. 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 intent to commit a crime at any time or at any point during the offense conduct. See Van Cannon v. United States, 890 F.3d 656 (7th Cir. 2018)

3. Whether the respondent’s conviction for attempted burglary under Texas Penal Code § 30.02 is a “crime of violence” under section 101(a)(43)(F) of the Act 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."