Realistic Probability, Categorical Child Abuse, and Stop-Time Ineligibility: Commentary on Silva de Santiago v. Bondi (5th Cir. 2025)

I. Introduction

In Silva de Santiago v. Bondi, No. 25‑60064 (5th Cir. Dec. 4, 2025), the United States Court of Appeals for the Fifth Circuit addressed two recurring questions in immigration-removal jurisprudence:

Whether New Mexico’s child-abuse statute, N.M. Stat. Ann. § 30‑6‑1(D), is categorically a “crime of child abuse, child neglect, or child abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i).
Whether the Board of Immigration Appeals (BIA) erred in declining to decide if the petitioner’s aggravated assault conviction was an “aggravated felony crime of violence,” and whether a remand was necessary so the BIA could consider potential relief, specifically cancellation of removal.

Judge Richman, writing for a unanimous panel, held that § 30‑6‑1(D) does categorically qualify as a crime of child abuse under the federal removal provision. The court further held that, regardless of how the aggravated assault conviction is classified, the petitioner is statutorily ineligible for cancellation of removal because his multiple convictions (with an aggregate sentence exceeding five years) triggered the stop‑time rule through 8 U.S.C. § 1182(a)(2)(B). As a result, remand would be futile, and the petition for review was denied.

The opinion is significant in three principal respects:

It expressly holds that New Mexico’s child-abuse statute, including its “inclement weather” prong, is a categorical match to the federal “crime of child abuse” definition as employed by the BIA and previously endorsed by the Fifth Circuit.
It reinforces and sharpens the “realistic probability” requirement in categorical overbreadth challenges, holding that unadjudicated, dismissed, or still-pending state prosecutions cannot satisfy that standard.
It applies the Supreme Court’s and Fifth Circuit’s stop‑time jurisprudence to hold that a noncitizen with multiple convictions carrying an aggregate sentence of at least five years is clearly ineligible for LPR cancellation, making a remand for consideration of aggravated-felony status unnecessary.

II. Case Background

A. Parties and Underlying Criminal Convictions

The petitioner, Edgar Eduardo Silva de Santiago, is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident (LPR) on December 12, 2016. In 2024, he pleaded guilty in New Mexico state court to eight offenses, including:

Child abuse under N.M. Stat. Ann. § 30‑6‑1(D), with the charging language that he “intentionally or recklessly caus[ed] or permit[ted] ... a child under the age of eighteen, to be tortured cruelly confined or cruelly punished, to wit: [he] punched [the child] in the lip.”
Aggravated assault with a deadly weapon under N.M. Stat. Ann. § 30‑3‑2(A).

In the aggregate, his sentences on the eight convictions totaled approximately 21.5 years of imprisonment (the opinion later stresses that actual time served is irrelevant for certain immigration purposes).

B. Removal Proceedings Before the Immigration Judge

The Department of Homeland Security (DHS) initiated removal proceedings, charging that:

His child-abuse conviction rendered him removable under 8 U.S.C. § 1227(a)(2)(E)(i) as a person convicted of “a crime of child abuse, child neglect, or child abandonment.”
His aggravated assault with a deadly weapon conviction constituted an aggravated felony “crime of violence” under 8 U.S.C. § 1227(a)(2)(A)(iii).

Silva de Santiago moved to terminate, arguing:

The New Mexico child-abuse statute is broader than the federal generic definition of a “crime of child abuse, neglect, or abandonment,” and therefore cannot be a categorical removable offense.
The New Mexico aggravated-assault statute is not a crime of violence for aggravated-felony purposes because it can be committed with a reckless mental state.

The Immigration Judge (IJ) rejected these arguments, sustained both charges of removability, and denied the motion to terminate. After that ruling, the IJ asked how Silva de Santiago wished to proceed. Through counsel, he stated that he would not pursue any relief (such as asylum or withholding of removal) and would “only reserve[] appeal.” The IJ then entered an order of removal.

C. Appeal to the BIA

On appeal, Silva de Santiago challenged only:

The IJ’s conclusion that his New Mexico child-abuse conviction was a “crime of child abuse” under § 1227(a)(2)(E)(i); and
The IJ’s finding that his aggravated assault conviction was an aggravated felony “crime of violence.”

The BIA applied the categorical approach to the New Mexico child-abuse statute and held that a conviction under § 30‑6‑1(D) was categorically a “crime of child abuse” as defined for purposes of § 1227(a)(2)(E)(i). In doing so, it rejected Silva de Santiago’s hypothetical about briefly allowing a child outside without a coat in freezing weather as insufficient to demonstrate statutory overbreadth. Because it found him removable on the child-abuse ground and because he had applied for no relief, the BIA declined to address the aggravated felony / crime-of-violence question.

D. Petition for Review to the Fifth Circuit

In the court of appeals, Silva de Santiago raised two issues:

The New Mexico child-abuse statute is overbroad and does not fit the generic federal definition of a crime of child abuse, so it cannot serve as a ground of removability.
The BIA committed reversible error in failing to decide whether the IJ correctly held that his aggravated assault conviction is an aggravated-felony crime of violence—especially because he asserted that, absent that aggravated-felony designation, he would be eligible for cancellation of removal as an LPR.

The Fifth Circuit denied the petition.

III. Summary of the Opinion

A. Jurisdiction

The court reaffirmed that it has jurisdiction to decide whether a particular state conviction renders a noncitizen removable (citing Sandoval Argueta v. Bondi, 137 F.4th 265 (5th Cir. 2025) and 8 U.S.C. § 1252(a)(2)(D)). Although § 1252(a)(2)(C) generally strips jurisdiction to review removal orders based on certain criminal grounds (including aggravated felonies), the court retains jurisdiction to decide the legal question whether a conviction qualifies as such a ground (citing Fosu v. Garland and Shroff v. Sessions).

B. Holding on the Child-Abuse Ground

The court:

Reaffirmed that § 1227(a)(2)(E)(i) is ambiguous as to the meaning of “crime of child abuse, child neglect, or child abandonment” and that the “best reading” of the statute aligns with the BIA’s broad definition set out in In re Soram, 25 I. & N. Dec. 378 (BIA 2010), as previously endorsed in Garcia v. Barr, 969 F.3d 129 (5th Cir. 2020), and Sandoval Argueta.
Applied the categorical approach and held that New Mexico’s § 30‑6‑1(D) fits within that federal generic definition.
Rejected the petitioner’s overbreadth argument because he failed to demonstrate a realistic probability that New Mexico would apply the statute in the “nongeneric” way he hypothesized, and because the one case he pointed to was dismissed and therefore not “settled law” demonstrating such a probability.

Accordingly, the court held that his conviction under § 30‑6‑1(D) is a categorical crime of child abuse and thus a valid ground of removability under § 1227(a)(2)(E)(i).

C. Refusal to Remand for Aggravated-Felony Determination

On the second issue, the court assumed without deciding that Silva de Santiago had exhausted any claim seeking remand for consideration of cancellation of removal. But it declined to remand, holding that any such remand would be futile because:

As an LPR, he could seek cancellation of removal only if he satisfied the conditions of 8 U.S.C. § 1229b(a)(1)–(3), including:
- At least five years as an LPR;
- Seven years of continuous residence after admission; and
- No conviction of any aggravated felony.
Under the stop‑time rule, 8 U.S.C. § 1229b(d)(1), certain criminal offenses “referred to in” § 1182(a)(2) or § 1227(a)(2)/(a)(4) terminate the accrual of continuous residence when “committed.”
Section 1182(a)(2)(B) renders inadmissible any noncitizen convicted of two or more offenses for which the aggregate sentence to confinement is five years or more. Here, Silva de Santiago had eight convictions with an aggregate sentence of approximately 21.5 years, all within seven years of his admission as an LPR.
Under Fifth Circuit precedent interpreting similar provisions, “the actual time spent in confinement is irrelevant” (citing Fonseca-Leite v. INS and Balogun v. Ashcroft).

Because those convictions made him inadmissible under § 1182(a)(2)(B) well before he could accrue seven years of continuous residence, the stop‑time rule barred him from satisfying § 1229b(a)’s continuous-residence requirement. Therefore, he was “clearly statutorily ineligible” for LPR cancellation of removal regardless of whether the aggravated assault was an aggravated felony. For the same reason, the court saw no need to remand to the BIA to consider the aggravated-felony ground of removability.

The petition for review was denied in full.

IV. Analysis

A. Precedents and Authorities Cited

1. “Crime of Child Abuse” and the BIA’s Definition

The court’s analysis of “crime of child abuse” is built on the following authorities:

In re Soram, 25 I. & N. Dec. 378 (BIA 2010): The BIA adopted a broad, unitary definition of “crime of child abuse” covering:
- Any intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment or impairs a child’s physical or mental well-being;
- Offenses involving physical harm (even slight), mental or emotional harm, and various forms of sexual abuse or exploitation; and
- “Endangerment-type” crimes—offenses that create a substantial risk of harm even without actual injury.
The BIA stressed that this is a “unitary concept”, not three separate categories.
Garcia v. Barr, 969 F.3d 129 (5th Cir. 2020): The Fifth Circuit recognized and applied Soram’s definition to a Colorado child-abuse statute, holding that endangerment-type child-abuse offenses can qualify as crimes of child abuse under § 1227(a)(2)(E)(i). The court also applied the categorical approach to assess whether the state statute was a match.
Sandoval Argueta v. Bondi, 137 F.4th 265 (5th Cir. 2025): The court (as quoted here) reaffirmed that the phrase “crime of child abuse, child neglect, or child abandonment” in § 1227(a)(2)(E)(i) is ambiguous, but that the best reading of the statute—without resorting to Chevron deference—matches the BIA’s broad Soram definition. It also cited Cruz v. Garland, 101 F.4th 361 (4th Cir. 2024), which agreed with the BIA and adopted the same broad interpretation.

In Silva de Santiago, the Fifth Circuit does not reopen the definitional debate. Instead, it takes Soram’s broad definition as a settled baseline and focuses on whether New Mexico’s § 30‑6‑1(D) falls within it.

2. Categorical Approach and Realistic Probability

The court’s application of the categorical approach and the “realistic probability” standard relies on:

Mellouli v. Lynch, 575 U.S. 798 (2015): The Supreme Court reiterated that in immigration cases, courts generally apply the categorical approach: comparing the elements of the state offense to the elements of the generic federal offense, while disregarding the noncitizen’s actual conduct. Mellouli also explains that an alien’s actual conduct is “irrelevant” and that the analysis is confined to the minimum conduct criminalized by the statute.
Moncrieffe v. Holder, 569 U.S. 184 (2013): A conviction under a state statute triggers removal only if the minimum conduct needed for conviction necessarily corresponds to the generic federal offense. A petitioner cannot rely on fanciful hypotheticals; he must show a “realistic probability” that the state actually applies its statute more broadly (expanded in Duenas‑Alvarez, below).
Gonzalez v. Duenas‑Alvarez, 549 U.S. 183 (2007): To demonstrate that a statute is overbroad, a petitioner must point either to his own case or to other cases in which the state courts have in fact applied the statute in the nongeneric way alleged. The Supreme Court specifically rejected reliance on “legal imagination” alone.
Vetcher v. Barr, 953 F.3d 361 (5th Cir. 2020): The Fifth Circuit, applying Duenas‑Alvarez, required a “realistic probability” showing. It emphasized that:
- A petitioner must point to actual cases where the statute was applied in the allegedly nongeneric way.
- Cases that are “still pending” (and by extension, not definitively decided) are “not settled law within the state” and “not reliable in this context.”
Ponce v. Garland, 70 F.4th 296 (5th Cir. 2023): The court reiterated that a petitioner cannot “simply rest on plausible interpretations of statutory text made in a vacuum” and must instead ground claims of overbreadth in the statute’s actual application.

Silva de Santiago deploys these precedents to reject the petitioner’s hypothesized application of the New Mexico statute to trivial or nonabusive exposure to cold weather, and to discount reliance on a dismissed prosecution as insufficient to show realistic probability.

3. Stop-Time Rule and Cancellation of Removal

The analysis of cancellation and stop‑time draws on:

Barton v. Barr, 590 U.S. 222 (2020): The Supreme Court explained the structure of cancellation of removal for LPRs under 8 U.S.C. § 1229b(a) and the stop‑time rule in § 1229b(d)(1). Barton held that certain offenses committed within the first seven years of residence terminate the accrual of continuous residence, and that the stop‑time rule applies even if the offense is not the direct basis of the removal charge.
Balogun v. Ashcroft, 270 F.3d 274 (5th Cir. 2001), and Fonseca‑Leite v. INS, 961 F.2d 60 (5th Cir. 1992): These cases interpret earlier versions of § 1182(a)(2)(B) and hold that for purposes of the “aggregate sentences to confinement” requirement (two or more offenses with sentences totaling five or more years), the actual time served is irrelevant. It is the sentence imposed that matters.
Wilkinson v. Garland, 601 U.S. 209 (2024) (as summarized in the opinion): The Supreme Court clarified that whether established facts satisfy a statutory eligibility standard for relief is a question of law subject to judicial review, even when the ultimate grant or denial of relief is discretionary.
Various Fifth Circuit decisions (Miresles‑Zuniga, Esquivel, Calix) confirming that whether an offense triggers the stop‑time rule is a legal question reviewed de novo, within the scope of § 1252(a)(2)(D).
Lopez‑Perez v. Garland, 35 F.4th 953 (5th Cir. 2022), and Nguhlefeh Njilefac v. Garland, 992 F.3d 362 (5th Cir. 2021): These cases endorse the doctrine that the court will not remand to the BIA if doing so would be futile, i.e., if there is “no realistic possibility” the outcome could change.

Silva de Santiago uses this framework to conclude that the petitioner’s multiple convictions with aggregate sentences over five years rendered him inadmissible under § 1182(a)(2)(B), triggered the stop‑time rule well before he accrued seven years of continuous residence, and thus categorically barred him from LPR cancellation.

4. Procedural and Jurisdictional Principles

Kamen v. Kemper Financial Services, Inc., 500 U.S. 90 (1991): The Supreme Court explained that courts are not bound by the legal theories advanced by the parties; they retain “the independent power to identify and apply the proper construction of governing law.” The Fifth Circuit invokes this to note that, in principle, it could raise the modified categorical approach sua sponte—but declines to do so here because the government never argued for it.
Alejos‑Perez v. Garland, 93 F.4th 800 (5th Cir. 2024): Cited twice. First, for the proposition that issues not fairly presented to the BIA—including reliance on specific authorities—are unexhausted. Second, as a contrast where an unaddressed alternative ground of removability was not reached because it was outside the scope of the BIA’s decision.

B. The Court’s Legal Reasoning

1. Defining the Federal Generic “Crime of Child Abuse”

The court begins its merits analysis with the statutory framework of 8 U.S.C. § 1227(a)(2)(E)(i), which provides that a noncitizen “convicted of ... a crime of child abuse, child neglect, or child abandonment is deportable.” The statute does not define the phrase “crime of child abuse, child neglect, or child abandonment,” and prior decisions (including Garcia and Sandoval Argueta) recognize this ambiguity.

Rather than reinventing the wheel, the court:

Reaffirms that the best reading of the statute aligns with the BIA’s broad, unitary definition in In re Soram, which:
- Includes offenses involving intentional, knowing, reckless, or criminally negligent acts or omissions;
- Covers maltreatment or impairment of a child’s physical or mental well-being;
- Extends to physical harm (even slight), mental/emotional harm, and sexual abuse or exploitation; and
- Encompasses endangerment crimes that create a substantial risk of such harm.
Notes that every circuit addressing the issue has found the statute silent or ambiguous, and that other circuits (notably the Fourth in Cruz) have accepted the BIA’s broad conception.
Observes that Silva de Santiago does not challenge Soram’s definition itself; he argues instead that New Mexico’s statute extends beyond that generic federal definition.

With the generic federal definition fixed, the question becomes: Does § 30‑6‑1(D) criminalize conduct that falls outside that definition?

2. Applying the Categorical Approach to New Mexico’s § 30‑6‑1(D)

Section 30‑6‑1(D) provides, in relevant part:

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.

The court applies the categorical approach, emphasizing that:

It compares the elements of the New Mexico offense to the elements of the generic federal offense.
It must presume that the conviction rested on the minimum conduct criminalized by the statute.
The petitioner’s actual conduct (punching a child in the lip) is irrelevant to the categorical analysis, even though his specific conduct clearly falls under child abuse.

Although there is a conceptual argument that § 30‑6‑1(D) might be divisible into three prongs (1)–(3), the government did not argue for the modified categorical approach, and the court—citing Mellouli—declines to reach that question. It therefore treats the statute as a whole under the straight categorical approach.

3. The Overbreadth Claim and “Realistic Probability”

Silva de Santiago’s core argument is that subsection (3)—exposure “to the inclemency of the weather”—extends beyond the generic federal definition. He contends that:

Subsection (3) “does not list any element of torture, cruelty, endangerment or maltreatment.”
It could criminalize extremely minor or innocuous conduct, such as allowing a child to run outside for one minute in freezing weather without a coat—conduct he claims would not meet the federal definition of child abuse.

The court responds in two steps:

It notes that the petitioner’s own conviction was under prong (2)—torture, cruel confinement, or cruel punishment—specifically for punching the child. He thus cannot point to his own case as an example of a nongeneric application.
It then examines whether he has shown a realistic probability that New Mexico actually prosecutes the trivial conduct he posits under prong (3).

On the second step, the court holds that his showing fails:

Before the BIA, he pointed to no cases at all where New Mexico applied § 30‑6‑1(D)(3) to the trivial “one minute without a coat” scenario or similarly nonabusive conduct. The BIA therefore correctly found that he had not demonstrated a realistic probability of such applications.
On petition for review, he identified a single New Mexico case that he claimed involved exposing a child to inclement weather for an extended period, but:
- The record was unclear as to whether the prosecution actually proceeded as he described;
- Critically, the prosecutor dismissed the case; there was no adjudication; and
- Following Vetcher, a “still pending”—or here, never-decided and dismissed—case is “not settled law within the state” and thus “not reliable” for purposes of demonstrating realistic probability.

As a result, even assuming arguendo that the petitioner did not fail to exhaust by omitting that case before the BIA, the court holds that a dismissed prosecution cannot carry his burden. He has not shown that New Mexico in fact applies § 30‑6‑1(D)(3) in a manner that falls outside the generic federal definition of child abuse.

Because he has not shown overbreadth, the court concludes that § 30‑6‑1(D) is not broader than the generic federal offense, and thus is a categorical match. His child-abuse conviction therefore supports his removability under § 1227(a)(2)(E)(i).

4. The Aggravated-Felony Question and Futility of Remand

The second major issue is whether the BIA erred by declining to decide if the aggravated assault conviction was an aggravated-felony “crime of violence.” Silva de Santiago claims that if the assault is not a crime of violence, he could be eligible for LPR cancellation of removal under 8 U.S.C. § 1229b(a).

The government responds that:

He did not properly exhaust any claim to cancellation of removal because he never applied for relief before the IJ, and on appeal to the BIA he only challenged the IJ’s denial of his motion to terminate and the removability findings.
Even if exhaustion were assumed, a remand would be futile because he is in any event statutorily ineligible for LPR cancellation.

The court chooses the narrower path: it assumes without deciding that the claim was exhausted but resolves the case on futility.

a. Statutory Framework: LPR Cancellation and Stop-Time

LPR cancellation under § 1229b(a) requires that the noncitizen:

Has been an LPR for at least five years;
Has resided in the United States continuously for seven years after admission in any status; and
Has not been convicted of any aggravated felony.

Section 1229b(d)(1) contains the stop‑time rule, which provides that the accrual of the seven-year continuous residence period is deemed to end when the noncitizen “has committed an offense referred to in” certain inadmissibility (§ 1182(a)(2)) or deportability (§ 1227(a)(2) or (a)(4)) provisions. In practical terms:

Committing such an offense cuts off further accrual of continuous residence from that date forward.
If the offense occurs before the seven-year mark, the person permanently fails to satisfy the seven-year requirement.

b. How § 1182(a)(2)(B) Triggers Stop-Time Here

The key cross-reference is 8 U.S.C. § 1182(a)(2)(B), which states that:

Any alien convicted of 2 or more offenses ... for which the aggregate sentences to confinement were 5 years or more is inadmissible.

The court applies § 1182(a)(2)(B) as follows:

Silva de Santiago was admitted as an LPR in December 2016.
In March 2019—within three years of admission—he was convicted of eight offenses, and the aggregate sentences imposed totaled approximately 21.5 years.
Under Fonseca‑Leite and Balogun, the length of the sentences imposed, not the actual time served, controls for the “aggregate sentences” requirement.
Because he has “2 or more offenses” with total sentences exceeding five years, he is inadmissible under § 1182(a)(2)(B).
That inadmissibility ground is “an offense referred to in” § 1182(a)(2), so under § 1229b(d)(1), it triggers the stop‑time rule.
Stop‑time is triggered well before he accrued seven years of continuous residence; indeed, it occurs only about three years after admission. Thus, he permanently fails the seven-year requirement.

Crucially, this analysis does not depend on whether the aggravated assault conviction is an aggravated felony or whether that conviction itself is the ground of removability. Even without an aggravated felony, the multiple convictions with aggregate sentences of 21.5 years are enough to:

Render him inadmissible under § 1182(a)(2)(B); and
Terminate his accrual of continuous residence under the stop‑time rule.

Therefore, he is statutorily ineligible for LPR cancellation of removal regardless of how the aggravated assault is classified.

c. Futility and No Need to Remand

Having determined that the petitioner cannot possibly satisfy the statutory eligibility criteria for cancellation, the court applies its futility doctrine:

Even if the BIA erred in not addressing the aggravated-felony ground (or even if the IJ or BIA’s aggravated-felony reasoning were flawed), a remand would not change the bottom line.
There is “no realistic possibility” that the BIA could grant cancellation, because the stop‑time rule bars him as a matter of law.
Under Lopez‑Perez, Jaco, and Alvarez, the court declines to remand where doing so would be futile.

The court also notes that for the same reason, it need not require the BIA to address the aggravated-felony ground of removability “in the first instance.” The removal order stands on the child-abuse ground alone, and potential relief is foreclosed by statute.

C. Impact and Implications

1. New Mexico Child Abuse as a Categorical “Crime of Child Abuse”

The most immediate doctrinal impact is that, within the Fifth Circuit:

A conviction under N.M. Stat. Ann. § 30‑6‑1(D) is now firmly established as a categorical “crime of child abuse” for purposes of § 1227(a)(2)(E)(i).
This includes all three prongs—endangerment, torture/cruel punishment, and exposure to inclement weather—absent a future showing, with real case law, that New Mexico applies some prong in a genuinely nongeneric way.

Practically, this means that any LPR or other admitted noncitizen convicted under § 30‑6‑1(D) will be deportable on the child-abuse ground in removal proceedings within the Fifth Circuit, assuming removability is otherwise established. Defense counsel in New Mexico must treat this statute as carrying serious immigration consequences.

2. Strengthening the “Realistic Probability” Requirement

Silva de Santiago continues a trend in the Supreme Court and the Fifth Circuit of rejecting hypothetical overbreadth arguments based on “legal imagination.” The opinion adds several important refinements:

It explicitly holds that a dismissed or never-decided state case is not “settled law” and therefore cannot establish the realistic probability needed to show categorical overbreadth.
It underscores that petitioners must:
- Point to actual, adjudicated decisions; and
- Present those decisions to the BIA in order to exhaust them, rather than raising them for the first time on petition for review.
In combination with Vetcher and Ponce, the decision makes it significantly harder for noncitizens to prevail on categorical overbreadth arguments unless they can marshal clear state precedent applying the statute in the expansive manner alleged.

3. Stop-Time Rule and Multiple Convictions Under § 1182(a)(2)(B)

The opinion’s application of the stop‑time rule has notable implications:

It reaffirms that multiple convictions with aggregate sentences of five or more years (even if no single conviction carries a five-year sentence) render a noncitizen inadmissible under § 1182(a)(2)(B).
That inadmissibility ground itself is enough to trigger the stop‑time rule.
Once stop‑time is triggered before the seven-year mark, a noncitizen can never satisfy the continuous-residence requirement for LPR cancellation.

For practitioners, this means:

Even if a client’s most serious conviction might be contestable as an aggravated felony or as a specific ground of removability, the existence of multiple convictions and their aggregate sentences must be carefully analyzed.
If those convictions total five years or more, cancellation of removal will often be off the table entirely, whether or not any individual conviction is an aggravated felony.

4. Exhaustion and Strategic Litigation Choices

The case also operates as a cautionary tale about litigation strategy before the IJ and BIA:

Silva de Santiago, through counsel, explicitly declined to seek any form of relief before the IJ and only “reserved appeal.” He likewise did not seek remand for relief in his BIA filings.
Although the Fifth Circuit assumed without deciding that he had exhausted an argument for cancellation, this assumption is quite generous and may not be extended in future cases.
The opinion signals that noncitizens and their counsel should:
- Affirmatively apply for any potentially available relief (such as cancellation) before the IJ; and
- Expressly frame requests for relief and remand in their BIA briefs if they wish to preserve them for judicial review.

The court’s reliance on futility further underscores that if statutory ineligibility is apparent from the record, appellate courts will not require the BIA to undertake a formal eligibility analysis.

5. Relationship to Chenery and BIA’s Role

Although not discussed explicitly, the court’s refusal to remand even where the BIA did not reach the aggravated-felony ground touches on the administrative-law principle from SEC v. Chenery Corp. that courts should ordinarily review agency decisions on the grounds actually invoked by the agency.

Here, however, the court is not substituting its own reasoning for the BIA’s on the removability question—removability is fully supported by the child-abuse ground that the BIA did address. Instead, it is concluding that, even if the BIA had erred by not addressing the aggravated-felony ground or by not considering cancellation, the error is harmless and nonprejudicial because the petitioner is unequivocally ineligible for relief as a matter of law. This is comfortably within the court’s authority to deny remand where no prejudice could result from the alleged error.

V. Simplifying Key Legal Concepts

A. “Crime of Child Abuse” Under Immigration Law

In everyday language, “child abuse” might evoke only severe physical or sexual abuse. Under immigration law, however, the term as used in § 1227(a)(2)(E)(i) is significantly broader:

It includes not just actual physical or sexual abuse, but also negligent or reckless acts that create a serious risk of harm.
It covers offenses where a child is placed in a dangerous situation even if the child is never actually hurt (“endangerment”).
It encompasses psychological harm, exploitation, and using a child in the commission of other serious crimes.

Because of this breadth, many state child-abuse or child-endangerment statutes will qualify as “crimes of child abuse” for immigration purposes, as long as their elements do not extend beyond this broad federal definition.

B. The Categorical Approach

The categorical approach is a method courts use to decide whether a state conviction fits a federal definition (like “crime of child abuse” or “aggravated felony”):

Courts look only at the statutory elements of the offense—the minimum facts the prosecution must prove to get a conviction.
They ignore how the crime actually happened in the real world (for example, that the petitioner punched a child).
If the statute criminalizes any conduct that falls outside the federal definition, the statute is considered “overbroad” and not a categorical match.

Sometimes, if a statute is “divisible” into alternative sets of elements (like different subsections defining distinct crimes), courts may use the “modified categorical approach” to look at certain records (like the charging document) to identify which specific part of the statute was the basis of the conviction. But here, the government did not invoke the modified approach, so the court treated § 30‑6‑1(D) as a whole.

C. The “Realistic Probability” Test

The realistic probability test prevents petitioners from winning an overbreadth argument based on purely hypothetical applications of a statute. To show that a statute really is broader than the federal definition, a petitioner must:

Show that the state has actually prosecuted people for the kind of conduct that falls outside the federal definition; and
Usually, point to published or recorded cases where courts upheld such prosecutions.

In other words, it is not enough to imagine that a creative prosecutor could apply a statute to trivial or unusual behavior. There must be concrete evidence that the statute has been or is regularly applied in that way.

D. The Stop-Time Rule and LPR Cancellation of Removal

Cancellation of removal is a form of discretionary relief that can allow certain long-term noncitizens, including LPRs, to avoid deportation despite being otherwise removable. For LPRs, eligibility requires:

At least five years as an LPR;
At least seven years of continuous residence after admission; and
No conviction of an aggravated felony.

The stop‑time rule is a critical limitation:

Certain criminal offenses immediately “freeze” the clock on continuous residence.
If the clock stops before seven years accrue, the noncitizen never becomes eligible for LPR cancellation.

In Silva de Santiago, the relevant stop‑time trigger was § 1182(a)(2)(B), which makes inadmissible anyone convicted of two or more offenses with aggregate sentences of at least five years. That inadmissibility ground is one of the kinds of offenses that triggers stop‑time under § 1229b(d)(1).

E. Aggravated Felonies and Crimes of Violence (Context Only)

Although the court ultimately did not decide whether the New Mexico aggravated assault conviction is a “crime of violence,” it is useful to understand that:

Many serious crimes are classified as “aggravated felonies” in immigration law, which carries severe consequences, including ineligibility for many forms of relief.
One subcategory of aggravated felonies includes “crimes of violence” as defined in 18 U.S.C. § 16 (incorporated by § 1101(a)(43)(F)).
There is ongoing litigation over whether offenses committed with a reckless mental state can be “crimes of violence,” which was the petitioner’s argument here regarding New Mexico’s aggravated assault statute.

The court did not reach these questions because, in light of the child-abuse ground and stop‑time bar, they would not affect the outcome.

VI. Conclusion

Silva de Santiago v. Bondi is a comprehensive reaffirmation of three important immigration-law doctrines in the Fifth Circuit:

Broad definition of “crime of child abuse” and categorical matching.
The court adopts and applies the BIA’s unitary, expansive definition of “crime of child abuse” and holds that New Mexico’s § 30‑6‑1(D) is a categorical match, solidifying that any conviction under this statute will generally support removability under § 1227(a)(2)(E)(i).
Strict enforcement of the realistic-probability requirement.
The decision underscores that hypothetical extremes (like a child outside for one minute in the cold) are insufficient to show overbreadth. Instead, petitioners must produce adjudicated state cases proving that the statute is applied in the claimed nongeneric way. Dismissed or pending prosecutions are not enough.
Robust application of the stop-time rule and futility doctrine.
By enforcing § 1182(a)(2)(B)’s multiple-convictions provision as a stop‑time trigger, the court holds that a noncitizen with aggregate sentences exceeding five years cannot meet the continuous-residence requirement for LPR cancellation. This makes remand for further consideration of aggravated-felony status unnecessary and confirms that statutory ineligibility will often render alleged errors harmless.

In the broader legal context, Silva de Santiago illustrates how tightly interwoven the concepts of removability, categorical analysis, and relief eligibility have become. It also highlights the importance of strategic choices at the IJ and BIA levels: declining to seek relief, failing to present relevant state cases, or overlooking the significance of aggregate sentencing can foreclose options long before a case reaches the court of appeals.