United States Court of Appeals

for the Fifth Circuit

No. 20-60952

Emmanuel Chukwuka Monsonyem, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the 

Board of Immigration Appeals

BIA No. A059 960 427

Before Clement, Graves, and Costa, Circuit Judges.

Per Curiam:

Emmanuel Chukwuka Monsonyem, a native and citizen of Nigeria, 

was admitted to the United States on January 10, 2009, under the terms of 

an immigrant visa. On June 30, 2017, he was convicted in Texas state court 

of the felony offense of injury to a child, in violation of Texas Penal Code 

§ 22.04(a)(3). On December 13, 2018, the Department of Homeland 

Security (DHS) served Monsonyem with a Notice to Appear (NTA),

charging him with removability under 8 U.S.C. § 1227(a)(2)(E)(i), as an alien 

who, at any time after admission, was convicted of a crime of child abuse.

United States Court of Appeals

Fifth Circuit

FILED

June 7, 2022

Lyle W. Cayce

Clerk

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In an April 2019 hearing before an Immigration Judge (IJ), 

Monsonyem, appearing with counsel, admitted to the allegations set forth in 

the NTA but contested the charge of removability. He filed a motion to 

terminate, arguing that his Texas state conviction for injury to a child under 

§ 22.04(a)(3) did not render him removable under § 1227(a)(2)(E)(i). 

Specifically, he argued that an offense under § 22.04(a) is categorically 

broader than child abuse because § 22.04(a) also criminalizes injury to an 

elderly person or a disabled individual. Further, he asserted that the modified 

categorical approach could not be applied to the statute because it is 

indivisible as to the victim class. The DHS opposed the motion, arguing that 

the statute is divisible and that under the modified categorical approach, his 

offense should be deemed a crime of child abuse. After hearing argument 

from the parties, the IJ sustained the charge of removability.

In August 2019, Monsonyem applied for cancellation of removal. He 

requested that the IJ exercise his discretion to grant him relief, arguing that, 

as required by statute, he had been lawfully admitted as a permanent resident 

for at least five years; he had resided in the United States continuously for 

seven years after his admission; and he had not been convicted of an 

aggravated felony. See 8 U.S.C. § 1229b(a). After a hearing, the IJ denied 

Monsonyem’s request for cancellation of removal, ordered him removed, 

and denied his request for voluntary departure.

Monsonyem appealed to the BIA, asserting numerous errors in the 

IJ’s decision. On September 15, 2020, the BIA dismissed Monsonyem’s 

appeal, denied his requests for cancellation of removal or voluntary 

departure, and ordered his removal. Proceeding pro se, Monsonyem then 

submitted a petition for review to this court.

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I.

When reviewing a BIA decision, we consider legal questions, 

including jurisdictional issues, de novo. See Zhu v. Gonzales, 493 F.3d 588, 

594 (5th Cir. 2007); Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006)

(per curiam). Findings of fact, on the other hand, are reviewed for substantial 

evidence. Zhu, 493 F.3d at 594. Under the substantial-evidence standard, 

we may not reverse factual findings unless the alien shows that “the evidence 

was so compelling that no reasonable factfinder could conclude against it.” 

Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009); see also 8 U.S.C. 

§ 1252(b)(4)(B) (providing that “administrative findings of fact are 

conclusive unless any reasonable adjudicator would be compelled to 

conclude to the contrary”). While our review is limited to the BIA’s 

decision, we will consider the IJ’s decision to the extent it influenced the BIA. 

See Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018).

II.

Monsonyem presents us with two overarching issues on appeal: 

(1) whether the BIA erred in affirming the IJ’s finding that he was removable 

under § 1227(a)(2)(E)(i) due to his § 22.04(a) conviction; and (2) whether 

the IJ erred in denying his application for cancellation of removal. As a 

preliminary matter, we have jurisdiction to consider Monsonyem’s petition 

even though the clerk’s office received it 31 days after the BIA’s decision. 

See Fosu v. Garland, No. 20-60749, slip op. at 4 (5th Cir. June 7, 2022)

(holding that pursuant to Federal Rule of Appellate Procedure 

25(a)(2)(A)(iii), “the prison mailbox rule applies to pro se detainees in 

immigration proceedings”). We consider each issue in turn.

A.

Monsonyem claims that the BIA erred in determining that § 22.04(a) 

serves as a qualifying crime of child abuse under § 1227(a)(2)(E)(i). 

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According to him, § 22.04(a) is categorically overbroad and indivisible as to 

victim class, and the BIA erred in finding otherwise. Moreover, Monsonyem 

avers that neither party presented the issue of victim-class divisibility before 

the IJ; thus, the IJ abused his authority by ruling on that matter. The BIA, on 

the other hand, found that Texas’ pattern jury instruction and caselaw 

supported the IJ’s finding that § 22.04 is divisible as to victim class. Further, 

it rejected Monsonyem’s argument that the IJ lacked authority to decide the 

divisibility issue because the parties did not present the issue. Instead, it 

found that the “[t]he issue of section 22.04(a)(3)’s divisibility was squarely 

presented by [Monsonyem’s] motion to terminate.” We agree with the BIA 

on both matters.

We begin with Monsonyem’s second sub-issue first: whether the IJ 

was permitted to consider the divisibility issue. Kamen v. Kemper Financial 

Services, Inc. is on point. 500 U.S. 90, 99 (1991). According to Kamen: 

“When an issue or claim is properly before the court, the court is not limited 

to the particular legal theories advanced by the parties, but rather retains the 

independent power to identify and apply the proper construction of 

governing law.” Id. at 99. Here, Monsonyem’s motion to terminate 

“squarely presented” the issue of the statute’s divisibility. Thus, the BIA 

did not err in rejecting Monsonyem’s claim that the IJ impermissibly ruled 

on the divisibility issue. 

We now turn to the divisibility issue itself. When determining 

whether a state conviction renders an alien removable, we apply the 

categorical approach. Garcia v. Barr, 969 F.3d 129, 134 (5th Cir. 2020). 

“Under that approach, we look not to the facts of the underlying case but 

instead to whether the statutory definition of the state crime ‘categorically 

fits within the ‘generic’ federal definition’ of the removable offense.” Id.

(quoting Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)). “So long as the 

relevant statutes state a single, or indivisible, set of elements, application of 

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the categorical approach is a rote exercise.” United States v. MartinezRodriguez, 857 F.3d 282, 285 (5th Cir. 2017). That is not the case here.

To begin, we need the generic federal definition. Section

§ 1227(a)(2)(E)(i) does not define “crime of child abuse.” Nonetheless, we 

have previously held that the BIA’s definition of the term is a reasonable 

reading that is entitled to Chevron deference. Garcia, 969 F.3d at 134 (citing 

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). 

According to the BIA, the term “crime of child abuse” means “any offense 

involving an intentional, knowing, reckless, or criminally negligent act or 

omission that constitutes maltreatment of a child or that impairs a child’s 

physical or mental well-being, including sexual abuse or exploitation.” 

Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 512 (BIA 2008); see also 

Garcia, 969 F.3d at 133-34 (adopting the BIA’s interpretation of the term). 

We now must consider whether § 22.04(a) falls within this generic federal 

definition.

Section § 22.04(a) criminalizes “intentionally, knowingly, recklessly, 

or with criminal negligence” causing by act or “intentionally, knowingly, or 

recklessly” causing by omission bodily or serious mental injury to “a child, 

elderly individual, or disabled individual.” The BIA concluded that “[t]here 

is no dispute,” § 22.04(a) is categorically overbroad. The BIA is correct. 

While § 1227(a)(2)(E)(i) is concerned with crimes against children, 

§ 22.04(a) is concerned with crimes against children and elderly and disabled 

individuals. Accordingly, § 22.04(a) is not “an equivalent to the generic 

offense.” Martinez-Rodriguez, 857 F.3d at 285.

That § 22.04(a) is overbroad is not the end of the matter, however. If 

the state statute “sets forth elements in an alternative or disjunctive 

structure, it is considered divisible, and a second approach is available to 

[us].” Id. “Known as the modified categorical approach, this approach

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allows [us] to pare down a prior conviction under a divisible statute by 

consulting certain materials,” such as the indictment, a written plea 

agreement, or the transcript of a plea colloquy. Id. This approach is only 

permitted if the relevant statute is divisible—i.e., if the statute lists out 

alternative elements, rather than alternative means. Id.; see also Mathis v. 

United States, 579 U.S. 500, 517–18 (2016) (same). To distinguish elements 

from means, we ask whether a jury must agree on the statute’s alternatives. 

Martinez-Rodriguez, 857 F.3d at 285; Mathis, 579 U.S. at 517–18; see also 

United States v. Garrett, 24 F.4th 485, 489 (5th Cir. 2022) (“To reiterate, 

‘[t]he test to distinguish means from elements is whether a jury must agree’ 

that one alternative, and not the other, was committed.” (quoting United 

States v. Howell, 838 F.3d 489, 497 (5th Cir. 2016))). 

The BIA concluded that § 22.04(a) is divisible as to victim class and 

applied the modified categorical approach over Monsonyem’s objection. We 

review the BIA’s legal conclusion de novo. See Zhu, 490 F.3d at 594. Like 

the BIA, we consider § 22.04(a)’s text, relevant state court precedents, 

Texas’ pattern jury instructions, and Monsonyem’s record of conviction to 

determine whether § 22.04(a) is divisible as to victim classes.

We begin with the text. See Mathis, 579 U.S. at 518 (“[T]he statute 

on its face may resolve the issue.”). While § 22.04(a) is largely unhelpful 

itself, an affirmative defense provided in § 22.04(a)(m) suggests that the 

statute is divisible as to victim classes. That subsection makes it “an 

affirmative defense to prosecution under [s]ubsections (a)(1), (2), and (3) for 

injury to a disabled individual that the person did not know and could not 

reasonably have known that the individual was a disabled individual, as 

defined by [s]ubsection (c), at the time of the offense.” § 22.04(a)(m) 

(emphasis added). This defense, or one like it, is not offered to crimes against 

children or elderly individuals. As the BIA concluded, “[t]his variation in 

the availability of a mistake-of-fact defense strongly suggests that Texas 

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understands ‘injury to a disabled individual’ to be a distinct offense from 

injury to a child or injury to an elderly individual.”

Texas state court cases also suggest that § 22.04(a) is divisible as to 

victim classes, though they do not definitively address the issue. See Mathis, 

579 U.S. at 518 (holding that state court rulings serve as authoritative sources 

on issues of divisibility). Importantly, none of the cases the government cites, 

or the IJ relied on, squarely address the issue of divisibility because none of 

the courts in these cases were asked to specifically decide that issue. 

Nevertheless, as the BIA concluded, the Texas state court cases:

show that violations of section 22.04(a)(3) are routinely 

prosecuted and adjudicated by selecting one class of victim to 

the exclusion of the others—that is, as either “bodily injury to 

a child,” or “bodily injury to an elderly individual,” or “bodily 

injury to a disabled individual,” but not as “bodily injury to 

[any of the three] or [more than one of the three].”

See Jones v. State, No. 02-17-00365-CR, 2019 WL 761566, at *3 (Tex. App.—

Fort Worth Feb. 21, 2019, no pet.) (unpublished) (“In order to show that 

Appellant committed the offense of injury to an elderly person, the State was 

required to show that Appellant intentionally or knowingly caused serious 

bodily injury to a person over the age of 65.”); Fraser v. State, 523 S.W.3d 

320, 325 (Tex. App.—Amarillo 2017), rev’d, 583 S.W.3d 564 (Tex. Crim. 

App. 2019) (“A person commits the offense of injury to a child if she 

intentionally, knowingly, recklessly, or by criminal negligence causes bodily 

injury or serious bodily injury to a child fourteen years old or younger.”); 

Arteaga-Roman v. State, No. 09-17-00188-CR, 2018 WL 2324686, at *5 (Tex. 

App.—Beaumont May 23, 2018, no pet.) (unpublished) (“[A] person 

commits the offense of injury to a child if he intentionally or knowingly causes 

bodily injury to a child.”); Hicks v. State, 241 S.W.3d 543, 544 (Tex. Crim. 

App. 2007) (stating that the defendant was convicted of “injury to a disabled 

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individual” by “intentionally or knowingly causing serious bodily injury to a 

disabled individual”); Kelly v. State, 748 S.W.2d 236, 237–38 (Tex. Crim. 

App. 1988) (stating that the defendant was “convicted of the offense of injury 

to an elderly individual” after the jury found beyond a reasonable doubt that 

he caused serious bodily injury to “an individual who was older than sixtyfive years of age”).

The Texas pattern jury instructions further support the government’s 

claim that § 22.04(a) is divisible. See Ibanez-Beltran v. Lynch, 858 F.3d 294, 

298 (5th Cir. 2017) (per curiam) (relying, in part, on a pattern jury charge to 

hold that a state statute was divisible). For § 22.04(a), the Texas pattern jury 

instructions provide juries with the following fill-in-the-blank charge: 

The defendant, AB, stands charged by indictment with the 

offense of causing ________ (serious bodily injury; OR 

serious mental deficiency, impairment, or injury; OR bodily 

injury) to ________ (a child; OR an elderly individual; OR a 

disabled individual), alleged to have been committed on or 

about ________ [date], in ________ County, Texas.

Texas Crim. Jury Charges § 6:2360 (2019 ed.). The charge then provides 

accompanying definitions for “child,” “elderly individual,” and “disabled 

individual.” Id. Like the alternatives “serious bodily injury,” “serious 

mental deficiency, impairment, or injury,” and “bodily injury”—which 

Texas state courts interpret to be discrete elements, see Stuhler v. State, 218 

S.W.3d 706, 716–19 (Tex. Crim. App. 2007)—“child,” “elderly individual,” 

and “disabled individual” are listed as separate, exclusive alternatives that a 

jury must agree on.

A review of § 22.04(a)’s text, relevant state court caselaw, and Texas 

pattern jury instructions favors an interpretation of § 22.04(a) as divisible to 

victim class. These authorities, however, are not definitive. Thus, we also 

consider “the record of [] prior conviction itself” to ascertain whether the 

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alternatives are elements of the offense. Mathis, 579 U.S. at 518. According 

to the indictment, the State of Texas charged Monsonyem with intentionally 

and knowingly causing bodily injury to “a child younger than 14 years of 

age.” Likewise, Monsonyem’s guilty plea stated that he was charged with, 

and pleaded guilty to, the felony offense of “injury to a child” pursuant to 

§ 22.04(a). The indictment and plea deal made no reference to elderly or 

disabled individuals. As Mathis stated, the use of one “alternative term to 

the exclusion of all others” could indicate “that the statute contains a list of 

elements, each one of which goes toward a separate crime.” 579 U.S. at 519. 

That seems to be the case here.

Based on § 22.04(a)’s text, relevant state court cases, Texas’ pattern 

jury instructions, and the record of prior conviction itself, we hold that 

§ 22.04(a) is divisible as to victim class. “Given this conclusion, the 

remainder of our analysis may be addressed in short order. Because the 

statute is divisible, we apply the modified categorical approach to see which 

offense, under [§ 22.04(a)], is the crime of conviction.” Garrett, 24 F.4th at 

491. In so doing, “we are permitted to look to the indictment and the judicial 

confession entered on [Monsonyem’s] guilty plea.” Id. Reviewing those 

documents, it is apparent that Monsonyem was charged with, and pleaded 

guilty to, causing bodily injury to a child. The BIA did not err in finding 

Monsonyem removable pursuant to § 1227(a)(2)(E)(i).

B.

Monsonyem also argues that the BIA erred in affirming the IJ’s refusal 

to grant him cancellation of removal. Because Monsonyem is proceeding pro 

se, we must construe his filings liberally. Rui Yang v. Holder, 664 F.3d 580, 

589 (5th Cir. 2011). That said, even pro se arguments must be briefed to be 

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preserved and they may not be incorporated from prior pleadings. See Yohey

v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). 

Monsonyem’s brief on appeal is an incomplete photocopy of his prior 

brief before the BIA. The photocopy includes a new table of contents, and 

his petition for review asks that we incorporate his photocopied brief. The 

arguments in the photocopied brief are directed to the BIA, not to this court. 

This is insufficient to effectively raise the arguments therein as a challenge to 

the BIA’s decision in this appeal. See Yohey, 985 F.2d at 224–25. To be sure, 

the new table of contents in Monsonyem’s brief does include a few summary 

allegations of BIA error, but without supporting record or legal citations, 

those assertions are insufficient to preserve the issues on appeal. Id.

Accordingly, we only review the issues that were properly asserted 

and briefed in Monsonyem’s petition for review. Because his petition for 

review is limited to the divisibility issue, which we already addressed, any 

issues concerning cancellation of removal and post-conclusion voluntary 

departure have been waived.1

* * *

Monsonyem’s petition is DENIED in part and DISMISSED in 

part.

1 Furthermore, the Supreme Court’s recent decision in Patel v. Garland, --- S. Ct. 

----, 2022 WL 11528346, at *11 (2022) likely inhibits our ability to review the IJ’s § 1229b(a) 

decision.

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