Antelmo Rocha-Ayala v. Eric Holder, Jr. , 558 F. App'x 484 ( 2014 )

Case: 13-60344 Document: 00512566279 Page: 1 Date Filed: 03/19/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60344 March 19, 2014
Summary Calendar
Lyle W. Cayce
Clerk
ANTELMO ROCHA-AYALA, also known as Antelmo Rocha, also known as
Antelmo Yala Rocha, also known as Antelmo Ayal Rocha, also known as
Antelmo Rocha-Ayal, also known as A. A. Rocha, also known as Antelmo A.
Rocha, also known as Anthelmo A. Rocha,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A041 103 438
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Antelmo Rocha-Ayala (Rocha), a native and citizen of Mexico, was
admitted to this country as an immigrant in 1987. In 2004, Rocha was
convicted of injury to a child in violation of § 22.04(a)(3) of the Texas Penal
Code Annotated, and he was sentenced to a two-year term of imprisonment.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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Subsequently, Rocha was charged with removability under 8 U.S.C.
§ 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, which was a
crime of violence (“COV”) as defined at 8 U.S.C. § 1101(a)(43)(F). He was also
charged with removability under § 1227(a)(2)(E)(i) as an alien who had been
convicted of a crime of child abuse. Rocha conceded the fact of his prior
conviction and the fact he had received a two-year sentence. Thus, the only
pertinent questions for the immigration judge (IJ) to determine were whether
Rocha’s prior conviction was a COV for purposes of § 1101(a)(43)(F) or a crime
of child abuse for purposes of § 1227(a)(2)(E)(i). The IJ sustained both charges
of removability, and the BIA affirmed that decision, dismissing Rocha’s appeal
without a written order. Rocha filed a motion for reconsideration that was
denied by the BIA. He has filed two separate petitions seeking review of the
BIA’s orders dismissing his appeal and denying his motion for reconsideration.
We first consider Rocha’s challenge to the BIA’s order dismissing his
appeal from the IJ’s order finding him removable as charged. Because Rocha
was found to be removable due to his commission of an aggravated felony as
defined at § 1101(a)(43), our jurisdiction to review the order of removal is
limited to legal or constitutional questions. See 8 U.S.C. § 1252(a)(2)(C), (d).
The first issue Rocha presents, whether his prior conviction constituted
a COV and, thus, an aggravated felony under § 1101(a)(43)(F), is a legal one.
See Martinez v. Mukasey, 519 F.3d 532, 538 (5th Cir. 2008). Rocha’s conviction
for injury to a child under § 22.04(a)(3) stemmed from Rocha’s act of grabbing
a child with his hand. We have previously addressed whether a conviction
under § 22.04(a)(3) is a COV, and we held that when the offense was committed
by an intentional act rather than by omission, the alien’s conviction is for an
aggravated felony for purposes of § 1101(a)(43)(F). See Perez-Munoz v. Keisler,
507 F.3d 357, 360-64 (5th Cir. 2007). Conceding that his crime involved an
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intentional act, Rocha nevertheless argues that it was not a COV because
“there is no ‘strong probability’ that physical force (destructive or violent) will
be used when grabbing a child with one’s hand.” We made clear in Perez-
Munoz, however, that the details of the intentional act committed in a given
case are irrelevant because the commission of the crime by an intentional act
will ordinarily involve the use or risk of use of physical force by the perpetrator.
Id. at 364. An offense under § 22.04(a)(3) committed by an intentional act,
then, is by its nature a COV. Id. Accordingly, the BIA correctly found that
Rocha had been convicted of an aggravated felony and was removable under
§ 1227(a)(2)(A)(iii). Id. at 360-64.
Rocha also asserts that the BIA erred in dismissing his appeal from the
finding of removability under § 1227(a)(2)(E)(i) because his conviction did not
qualify as a crime of child abuse for purposes of that statute. As the decision
that Rocha was removable under § 1227(a)(2)(A)(iii) would not be altered even
if we were to rule favorably on his challenge to the determination that he was
convicted of a crime of child abuse for purposes of § 1227(a)(2)(E)(i), we need
not address the legal issue raised by Rocha or the exhaustion issue raised by
the respondent with respect to this point of error. See Capital Concepts
Properties 85-1 v. Mutual First, Inc., 35 F.3d 170, 176 (5th Cir. 1994).
Accordingly, Rocha’s petition for review of the BIA’s order dismissing his
appeal is DENIED.
We turn next to Rocha’s challenge to the BIA’s denial of his motion for
reconsideration. We have jurisdiction to consider the denial of a motion to
reconsider, but our review involves a “highly deferential abuse-of-discretion
standard.” Nolos v. Holder, 611 F.3d 279, 281 (5th Cir. 2010); accord Zhao v.
Gonzales, 404 F.3d 295, 303-04 (5th Cir. 2005). The BIA’s ruling will stand,
even if we conclude it is erroneous, “so long as it is not capricious, racially
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invidious, utterly without foundation in the evidence, or otherwise so irrational
that it is arbitrary rather than the result of any perceptible rational approach.”
Zhao, 404 F.3d at 304 (internal quotation marks and citation omitted).
Rocha’s attorney-drafted brief contains no discussion of the legal
standards applicable to motions for reconsideration. Nor does it address the
specific reasons stated by the BIA for denying Rocha’s motion for
reconsideration. We thus deem Rocha’s challenge to the denial of that motion
to be inadequately briefed and consequently abandoned. See Rui Yang v.
Holder, 664 F.3d 580, 589 (5th Cir. 2011). Accordingly, Rocha’s petition for
review of the BIA’s order denying his motion for reconsideration is DENIED.
PETITIONS FOR REVIEW DENIED.
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