# Silva de Santiago v. Bondi

> Court of Appeals for the Fifth Circuit · December 4, 2025

URL: https://www.frixlaw.com/law-library/cases/11214232

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** December 4, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Immigration
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11214232

## How later opinions describe it (automated extraction)

- declining to remand when it would be futile

## Opinion text

Case: 25-60064 Document: 41-1 Page: 1 Date Filed: 12/04/2025

United States Court of Appeals
for the Fifth Circuit
____________

No. 25-60064
____________

Edgar Eduardo Silva de Santiago,

Petitioner,

versus

Pamela Bondi, U.S. Attorney General,

Respondent.
______________________________

Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A064 867 689
______________________________

Before Elrod, Chief Judge, and Richman and Willett, Circuit
Judges.
Priscilla Richman, Circuit Judge:
Petitioner Edgar Eduardo Silva de Santiago, a native and citizen of
Mexico, entered the United States in 2016 as a legal permanent resident. In
2024, he pleaded guilty to eight offenses as charged, which included
convictions for abuse of a child under New Mexico Revised Statute § 30-6-
1(D) and aggravated assault with a deadly weapon under New Mexico
Revised Statute § 30-3-2(A). His conviction for child abuse was based on his
“intentionally or recklessly caus[ing] or permit[ting] . . . a child under the age
of eighteen, to be tortured cruelly confined or cruelly punished, to wit: [Silva
Case: 25-60064 Document: 41-1 Page: 2 Date Filed: 12/04/2025

No. 25-60064

de Santiago] punched [the child] in the lip.” In the aggregate, his sentences
for all eight convictions were approximately 21.5 years.
After his convictions, the United States Department of Homeland
Security (DHS) issued a notice to appear, initiating removal proceedings
against Silva de Santiago. DHS charged Silva de Santiago as removable
because (1) his conviction for child abuse qualified as a crime of child abuse,
child neglect, or child abandonment under 8 U.S.C. § 1227(a)(2)(E)(i) and
(2) his conviction of aggravated assault with a deadly weapon constituted an
aggravated felony under § 1227(a)(2)(A)(iii).
Silva de Santiago moved to terminate the removal proceedings,
alleging that his convictions did not support DHS’ grounds of removability.
Specifically, he claimed that the New Mexico statute under which he was
convicted for child abuse, § 30-6-1(D), did “not meet the federal definition
of child abuse, neglect, or abandonment,” and that the New Mexico statute
under which he was convicted for an aggravated battery, § 30-3-2(A), was
“not a crime of violence under” § 1227(a)(2)(A)(iii) because it could “be
committed with a reckless state of mind.” The Immigration Judge (IJ)
sustained both charges of removability and denied Silva de Santiago’s motion
to terminate the removal proceedings. The IJ conducted a hearing following
the denial of his motion to terminate and asked Silva de Santiago how he
wished to proceed. His lawyer stated that he “spoke to [Silva de Santiago]
about possible relief” and “[a]sylum’s not there,” he “won’t pursue”
“withholding,” “[s]o at this point . . . it’s just going to be an order.” When
the IJ confirmed that Silva de Santiago would “not apply for any other relief
from removal,” his lawyer stated “[n]o other relief, Your Honor, that’s
correct,” Silva de Santiago “only reserves appeal.” The IJ then issued an
order of removal.

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Silva de Santiago appealed to the Board of Immigration Appeals
(BIA), challenging the IJ’s denial of his motion to terminate and order of
removal. The BIA dismissed his appeal and upheld the IJ’s order of
removal. In considering whether Silva de Santiago’s conviction for child
abuse under New Mexico Revised Statute § 30-6-1(D) constituted a crime of
child abuse under 8 U.S.C. § 1227(a)(2)(E)(i), the BIA “employ[ed] the
categorical approach under which [it] disregard[ed] his actual conduct and
focus[ed] instead on the elements of the offense and the minimum conduct
that has a realistic probability of being prosecuted under the statute.” The
New Mexico statute criminalizing child abuse states:
Abuse of a child consists of a person knowingly, intentionally
or negligently, and without justifiable cause, causing or
permitting a child to be:
(1) placed in a situation that may endanger the child’s
life or health;
(2) tortured, cruelly confined or cruelly punished; or
(3) exposed to the inclemency of the weather. 1
Silva de Santiago argued that a conviction under prong (3) “does not list any
element of torture, cruelty, endangerment, or maltreatment,” so
“DHS . . . failed to meet their burden” that his “conviction is a removable
offense.” He alleged that conduct such as allowing a child to “run[] outside
in freezing weather without a coat, even if only for one minute, . . . could be
considered child abuse under the [New Mexico] statute but would not meet
the federal definition.” The BIA rejected his argument, explaining that he
did not identify any cases in which New Mexico had prosecuted anyone for
brief exposure to inclement weather or conduct that would fall outside the
_____________________
1
N.M. Stat. Ann. § 30-6-1(D).

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No. 25-60064

federal definition. For this reason, the BIA concluded that he failed to
establish a realistic probability that New Mexico would apply prong (3) to
conduct falling outside the federal definition of child abuse and affirmed the
IJ’s conclusion that his conviction is “categorically a crime of child abuse.”
The BIA did not address whether the aggravated assault conviction
constituted an aggravated felony under § 1227(a)(2)(A)(iii) since DHS
established his removability under § 1227(a)(2)(E)(i) and he had not “filed
[any] applications for relief from removal.” Silva de Santiago filed a timely
petition for review of the BIA’s decision.
I
Silva de Santiago raises two issues before this court. First, he argues
that the “New Mexico Child Abuse statute does not meet the generic federal
offense of child abuse,” so it “is not a removable offense.” Second, he
alleges the “BIA committed reversible error by failing to make the
determination of whether the [IJ] was correct in finding that [he] had been
convicted of the aggravated felony crime of violence.”
We have jurisdiction to consider whether “a particular state
conviction renders an alien removable.” 2 While “we generally lack
jurisdiction to review the BIA’s order of removal against an alien who is
removable by reason of having committed an aggravated felony under
§ 1227(a)(2)(A)(iii),” 3 “we retain jurisdiction to review related questions of
law, including whether an alien’s conviction constitutes an aggravated

_____________________
2
See Sandoval Argueta v. Bondi, 137 F.4th 265, 271 (5th Cir. 2025) (quoting Ponce
v. Garland, 70 F.4th 296, 299 (5th Cir. 2023)); see also 8 U.S.C. § 1252(a)(2)(D).
3
Fosu v. Garland, 36 F.4th 634, 636 (5th Cir. 2022) (citing § 1252(a)(2)(C)).

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felony.” 4 “[W]e review the BIA’s decision, though we will consider the IJ’s
decision to the extent it influenced the BIA.” 5
II
Under § 1227(a)(2)(E)(i), an alien “who at any time after admission
is convicted of . . . a crime of child abuse, child neglect, or child abandonment
is deportable.” 6 The meaning of “child abuse, child neglect, or child
abandonment” is not defined statutorily, 7 and we have previously recognized
the phrase is ambiguous. 8 We have also explained, “without invoking
Chevron deference, the best reading of [the statute] confirms the BIA’s broad
interpretation of ‘crime of child abuse,’” 9 which is as follows:
[A]ny 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. At a
minimum, this definition encompasses convictions for offenses
involving the infliction on a child of physical harm, even if
slight; mental or emotional harm, including acts injurious to
morals; sexual abuse, including direct acts of sexual contact,
_____________________
4
Id. (internal citations omitted); see § 1252(a)(2)(D); Shroff v. Sessions, 890 F.3d
542, 544 (5th Cir. 2018) (“We . . . review ‘constitutional claims or questions of law raised
upon a petition for review,’ such as whether a conviction qualifies as an aggravated felony.”
(quoting 8 U.S.C. § 1252(a)(2)(D)).
5
Fosu, 36 F.4th at 636 (citing Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018)).
6
8 U.S.C. § 1227(a)(2)(E)(i).
7
See Sandoval Argueta, 137 F.4th at 273.
8
See id. at 273; Garcia v. Barr, 969 F.3d 129, 133 (5th Cir. 2020) (“Every circuit
court to consider this issue has found the statute silent or ambiguous on the meaning of a
crime of child abuse.”).
9
Sandoval Argueta, 137 F.4th at 273-74 (quoting Cruz v. Garland, 101 F.4th 361,
365-66 (4th Cir. 2024) (agreeing with the Fourth Circuit’s reasoning when interpreting
“crime of child abuse” under § 1227(a)(2)(E)(i)).

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but also including acts that induce (or omissions that permit) a
child to engage in prostitution, pornography, or other sexually
explicit conduct; as well as any act that involves the use or
exploitation of a child as an object of sexual gratification or as a
tool in the commission of serious crimes, such as drug
trafficking. 10
The BIA’s definition “expresses a ‘unitary concept’” and “‘is sufficiently
broad to encompass endangerment-type crimes.’” 11 Silva de Santiago does
not challenge the BIA’s definition as the applicable generic federal
definition.
To determine whether Silva de Santiago’s conviction under New
Mexico Revised Statute § 30-6-1(D) is a crime of child abuse under
§ 1227(a)(2)(E)(i) that renders him removable, we apply the categorical
approach. 12 Even though we are “not limited to the particular legal theories
advanced by the parties, but . . . retain[] the independent power to identify
and apply the proper construction of governing law,” 13 we need not

_____________________
10
In re Soram, 25 I. & N. Dec. 378, 380 (BIA 2010); see Garcia, 969 F.3d at 133
(recognizing the BIA’s definition of a “crime of child abuse.”).
11
Garcia, 969 F.3d at 133 (quoting In re Soram, 25 I. & N. Dec. at 381, 383).
12
Id. at 134 (“To determine whether a state conviction renders an alien removable,
we generally apply the ‘categorical approach.’” (quoting Mellouli v. Lynch, 575 U.S. 798,
804-05 (2015))); Adeeko v. Garland, 3 F.4th 741 (5th Cir. 2021) (“In determining whether
a state conviction qualifies as a crime of child abuse, we apply a ‘categorical approach.’”
(quoting Mellouli, 575 U.S. at 804-05)); Monsonyem v. Garland, 36 F.4th 639, 643 (5th Cir.
2022) (“When determining whether a state conviction renders an alien removable, we
apply the categorical approach.”).
13
Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); see Monsonyem, 36 F.4th
at 642 (applying this principle when examining whether the BIA erred in rejecting the
Petitioner’s claim that the IJ impermissibly ruled on a divisibility issue).

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determine whether we should apply the modified categorical approach
because the Government has not argued it applies. 14
Under the categorical 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.” 15 “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.” 16 Because “[a]n alien’s actual conduct is irrelevant to the
inquiry,” 17 “we presume that the conviction rested on nothing more than
‘the minimum conduct criminalized by the state statute.’” 18 “When there
is a categorical match, a state law conviction triggers removal.” 19
“To show that [a state] statute is broader than its federal counterpart,
[the Petitioner] must . . . show ‘a realistic probability’ that [the state] will
prosecute the ‘conduct that falls outside the generic definition of a crime.’” 20

_____________________
14
Mellouli, 575 U.S. at 805 n.4 (“Because the Government has not argued that this
case falls within the compass of the modified-categorical approach, we need not reach the
issue.”).
15
Garcia, 969 F.3d at 134 (quoting Moncrieffe v. Holder, 569 U.S. 184, 190 (2013));
see Vetcher v. Barr, 953 F.3d 361, 366 (5th Cir. 2020) (“The categorical approach analyzes
whether the elements of the state conviction are the same as or narrower than the elements
of the generic removability offense under federal law, while ignoring the particular facts of
the case.”).
16
Vetcher, 953 F.3d at 366.
17
Mellouli, 575 U.S. at 805.
18
Garcia, 969 F.3d at 135 (quoting Moncrieffe, 569 U.S. at 190-91).
19
Vetcher, 953 F.3d at 367.
20
Id. at 367 (quoting Moncrieffe, 569 U.S. at 191).

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A Petitioner must “point to his own case” 21 or “other cases ‘in which the
state courts in fact did apply the statute in the special (nongeneric) manner
for which he argues.’” 22 “A petitioner arguing that a statute is overbroad
‘cannot simply rest on plausible interpretations of statutory text made in a
vacuum.’” 23
Silva de Santiago contends § 30-6-1(D) is not a categorical match
because it would criminalize conduct that “does not meet the federal
definition.” He argues the New Mexico statute is overbroad, bringing the
same argument before us that he did before the BIA: subsection (3) of the
New Mexico statute “does not list any element of torture, cruelty,
endangerment or maltreatment;” it would criminalize “a child run[ning]
outside in freezing weather without a coat, even if only for one minute.”
While he did not identify any cases before the BIA in which New Mexico had
prosecuted anyone for such brief exposure to inclement weather, before this
court, he cites to a case in which he claims New Mexico prosecuted a person
for exposing a child to inclement weather for an extended period of time. We
are unable to confirm whether New Mexico prosecuted the person as Silva
de Santiago alleges. Nevertheless, the prosecutor dismissed the case. Even
assuming he has not failed to exhaust this issue for not having presented the
case before the BIA, 24 cases “still pending”—much less never decided—are
“not settled law within the state, which in turn, does not make it reliable in
_____________________
21
Id.
22
Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
23
Ponce v. Garland, 70 F.4th 296, 301 (5th Cir. 2023) (quoting United States v.
Castillo-Rivera, 853 F.3d 218, 222 (5th Cir. 2017) (en banc)).
24
Alejos-Perez v. Garland, 93 F.4th 800, 806 (5th Cir.) (“[T]he BIA was not ‘on
notice’ that [the Petitioner] would rely on these authorities, and therefore [he] failed to
exhaust his administrative remedies with respect to them.”), cert. denied, 145 S. Ct. 591
(2024).

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this context.” 25 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.
Nor can he point to his own case. The indictment provides that New
Mexico prosecuted Silva de Santiago for “intentionally or recklessly
caus[ing] or permit[ting] . . . a child under the age of eighteen, to be tortured
cruelly confined or cruelly punished, to wit: [Silva de Santiago] punched [the
child] in the lip.”
Silva de Santiago has not shown that § 30-6-1(D) is broader than the
generic federal definition. We therefore cannot conclude that § 30-6-1(D) is
not a categorical match to 8 U.S.C. § 1227 (a)(2)(E)(i).
III
Silva de Santiago asks us to remand to the BIA, contending it erred by
not addressing whether his conviction for aggravated assault with a deadly
weapon in violation of § 30-3-2(A) is a crime of violence under 8 U.S.C.
§ 1227(a)(2)(A)(iii). He explains that if such a conviction does not constitute
a crime of violence, he is eligible for cancellation of removal. The
government argues Silva de Santiago failed to exhaust the issue of eligibility
for cancellation of removal. Said differently, the government contends this
is a “new” issue before us. In the alternative, the government contends that
remand would be futile. “We review de novo the [BIA’s] legal
conclusions.” 26
Before the IJ, Silva de Santiago stated he would not apply for any relief
from removal and only reserved appeal. Before the BIA, Silva de Santiago

_____________________
25
Vetcher, 953 F.3d at 368.
26
Ponce, 70 F.4th at 299 (alteration in original) (quoting Garcia, 969 F.3d at 132).

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stated that the “issues for review” were whether the IJ “erred by denying
[his] Motion to Terminate Removal proceedings,” “[s]pecifically . . . by
finding that [he] was removable for the aggravated felony crime of violence
and child abuse.” Nowhere in his filings before the BIA did he indicate that
he sought remand for relief, and the BIA did not address whether his
conviction constitutes a federal crime of violence because he had not filed any
applications for relief from removal and was removable for his child abuse
conviction.
We decline to reach the government’s argument that Silva de Santiago
failed to exhaust his claim. Assuming without deciding that Silva de Santiago
exhausted his argument, “we will not remand if doing so would be futile.” 27
Under 8 U.S.C. § 1229b(a), which pertains to lawful permanent residents,
an IJ may cancel removal of a noncitizen who is inadmissible or deportable if
the noncitizen “(1) has been an alien lawfully admitted for permanent
residence for not less than 5 years, (2) has resided in the United States
continuously for 7 years after having been admitted in any status, and (3) has
not been convicted of any aggravated felony.” 28 The statute also imposes
another “requirement known as the ‘stop-time rule.’” 29 “[D]uring the
initial seven years of residence” a noncitizen “cannot have committed ‘an
offense referred to in section 1182(a)(2) of this title that renders the alien
inadmissible to the United States under section 1182(a)(2) of this title or
removable from the United States under section 1227(a)(2) or 1227(a)(4) of
_____________________
27
Lopez-Perez v. Garland, 35 F.4th 953, 956 (5th Cir. 2022); see Nguhlefeh Njilefac
v. Garland, 992 F.3d 362, 365 (5th Cir. 2021) (“[E]ven if the [BIA] erred at some point in
its analysis, we can still uphold its ultimate decision if ‘there is no realistic possibility’ that
the [BIA’s] conclusion would have been different absent the error.” (quoting Enriquez-
Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010))).
28
Barton v. Barr, 590 U.S. 222, 227 (2020) (quoting 8 U.S.C. § 1229b(a)).
29
Id.

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this title.’” 30 Put simply, “if an alien is inadmissible for having committed
offenses specified in § 1182(a), he is removable as well.” 31
Under § 1182(a)(2)(B),
Any alien convicted of 2 or more offenses (other than purely
political offenses), regardless of whether the conviction was in
a single trial or whether the offenses arose from a single scheme
of misconduct and regardless of whether the offenses involved
moral turpitude, for which the aggregate sentences to
confinement were 5 years or more is inadmissible. 32

Silva de Santiago was admitted to the United States on December 12, 2016
as a lawful permanent resident. He was convicted of eight state criminal
offenses on March 10, 2019, well within seven years of his admission as a
lawful permanent resident. The aggregate sentences for those eight
convictions was roughly 21.5 years of imprisonment—“[t]he actual time
spent in confinement is irrelevant.” 33 Irrespective of whether Silva de
Santiago’s conviction for aggravated assault constitutes a crime of violence,

_____________________
30
Id. (quoting 8 U.S.C. § 1229b(d)(1)(B)).
31
Balogun v. Ashcroft, 270 F.3d 274, 279 (5th Cir. 2001).
32
8 U.S.C.§ 1182(a)(2)(B).
33
Fonseca-Leite v. I.N.S., 961 F.2d 60, 62 (5th Cir. 1992) (interpreting former 8
U.S.C. § 1182(a)(10)); see, e.g., Balogun, 270 F.3d at 276, 278-79 (5th Cir. 2001)
(interpreting former § 1182(a)(2)(B) not to require the alien to have actually spent time in
confinement).

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he is clearly statutorily ineligible for cancellation of removal. 34 Remand for
further proceedings would be futile. 35
For the same reasons we need not remand for the BIA to address this
ground of removability in the first instance. 36
We DENY the petition for review.

_____________________
34
See Linares-Rivas v. Bondi, 139 F.4th 454 (5th Cir. 2025) (explaining that applying
for cancellation of removal is a two-step process and the applicant must first “show that he
‘satisfies the applicable [statutory] eligibility requirements’” (alteration in original)
(quoting Wilkinson v. Garland, 601 U.S. 209, 213 (2024))); see also Miresles-Zuniga v.
Holder, 743 F.3d 110, 112 (5th Cir. 2014) (stating that this court “can review whether, as a
matter of law, [the Petitioner’s] offense triggers the stop-time provision in § 1229b(d)(1)”
and that this court “review[s] such questions de novo”); Esquivel v. Lynch, 803 F.3d 699,
702 (5th Cir. 2015) (“Whether an individual is statutorily ineligible for cancellation of
removal because of § 1229b(d)(1)’s stop-time rule is a question of law that we review de
novo.”); Calix v. Lynch, 784 F.3d 1000, 1004 (5th Cir. 2015) (“[T]his court reviews de
novo whether, as a matter of law, an offense invokes the stop-time rule under Section
1229b(d)(1).”). See generally Wilkinson, 601 U.S. at 225 (“[T]he question
whether . . . established facts satisfy the statutory eligibility standard is subject to judicial
review.”).
35
See Lopez-Perez, 35 F.4th at 958 (upholding the IJ’s decision and declining to
remand because it would be futile); Jaco v. Garland, 24 F.4th 395, 406 (5th Cir. 2021)
(concluding that a remand was “inappropriate because it would be futile”); see also United
States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (declining to remand when it would be
futile).
36
Cf. Alejos-Perez v. Garland, 93 F.4th 800, 802 n.1 (5th Cir.) (“The immigration
judge also found that Alejos-Perez was removable under § 1227(a)(2)(A)(ii), but that
finding was not addressed by the BIA and is therefore not at issue here.”), cert. denied, 145
S. Ct. 591 (2024); Alejos-Perez v. Garland, 991 F.3d 642, 652 (5th Cir. 2021) (“The BIA also
declined to address the government’s argument that Alejos-Perez’s 2009 and 2013
convictions render him removable. Alejos-Perez admits that, even if we grant his petition
for review, remand would be required to allow the BIA to address the additional ground of
removability.” (internal quotations omitted)).

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11214232. Public record. Not legal advice.