Sharif v. Holder , 342 F. App'x 967 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 28, 2009
No. 08-60616
Summary Calendar Charles R. Fulbruge III
Clerk
MOHAMMAD SHARIF,
Petitioner,
versus
ERIC H. HOLDER, JR., U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A79 557 075
Before DAVIS, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
Mohammad Sharif, a native and citizen of Bangladesh, petitions for review
of a Final Administrative Removal Order issued by the Department of Homeland
Security (“DHS”) pursuant to the expedited removal proceedings in 8 U.S.C.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-60616
§ 1228(b). Sharif was ordered to be removed based on his 2006 conviction in Tex-
as state court of soliciting a minor/aggravated sexual assault of a child under the
age of fourteen, which DHS determined to be an aggravated felon conviction for
purposes of 8 U.S.C. § 1227(a)(2)(A)(iii). Sharif argues that § 1228(b) is not ap-
plicable to him and that his Texas conviction does not qualify as an aggravated
felony conviction.
Although this court lacks jurisdiction to review the final order of removal,
see 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to review constitutional claims
or questions of law. § 1252(a)(2)(D). We review legal questions, such as whether
Sharif’s conviction constitutes an aggravated felony, and constitutional claims
de novo. See Larin-Ulloa v. Gonzales, 462 F.3d 456, 461 n.7 (5th Cir. 2006); De-
Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004).
Sharif’s first argument is that an alien in § 1228(b) proceedings must be
in a state or federal facility before commencement of those proceedings. Sharif
has waived that argument by failing to brief it adequately. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993); F ED. R. A PP. P. 28(a)(9).
Sharif next contends that § 1228(b) applies only to aliens who are not legal
permanent residents (“LPR’s”) and aliens who are conditional LPR’s. Because
his status as a conditional LPR was revoked before the removal proceedings,
Sharif asserts that § 1228(b) is not applicable to him as a conditional LPR. Be-
cause, however, § 1228(b) is nonetheless applicable to Sharif as a Non-LPR, his
argument lacks merit. See § 1228(b)(2)(A). Moreover, as to Sharif’s claim that
§ 1228(b)’s distinction between LPR’s and conditional LPR’s violates his equal
protection rights, he lacks standing because, as he asserts, § 1228(b) is not
applicable to him as a conditional LPR. Even if he had standing, his argument
fails to state a valid equal protection claim. See Stefanoff v. Hays County, 154
F.3d 523, 525-25 (5th Cir. 1998).
In determining whether Sharif’s offense is an aggravated felony, we apply
a categorical approach, referring only to the statutory definition of the crime
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No. 08-60616
rather than examining the underlying facts of the offense. Larin-Ulloa, 462 F.3d
at 463. Because, however, the statute of conviction defines multiple offenses, “at
least one of which does not describe an aggravated felony,” we apply a modified
categorical approach and may examine additional documents to determine
whether the conviction was “necessarily for a particular crime defined by the
statute that meets the aggravated felony criterion.” Id. at 464 (internal quota-
tion marks and citation omitted). At issue is whether Sharif’s Texas offense con-
stituted “sexual abuse of a minor” or attempted “sexual abuse of a minor” for
purposes of 8 U.S.C. § 1101(a)(43)(A), (U).
Sharif asserts that Lopez v. Gonzales, 549 U.S. 47 (2006), requires a state
statute to have a federal counterpart to qualify as an aggravated felony offense.
His argument is not supported by Lopez. See Lopez, 549 U.S. at 57. Moreover,
Lopez is distinguishable from the instant case, because Lopez involved a differ-
ent portion of the definition of “aggravated felony” than does the portion at issue
in this case.
Examination of the charging document shows that Sharif was convicted
under T EX. P ENAL C ODE § 15.031 of “Criminal Solicitation of a Minor” with in-
tent to commit “Aggravated Sexual Assault” under T EX. P ENAL C ODE § 22.021.
Pursuant to the definition of “sexual abuse of a minor” in United States v. Zava-
la-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000), Sharif’s Texas offense is an aggra-
vated felony conviction, thereby rendering him removable as charged. See Her-
nandez-Alvarez v. Gonzales, 432 F.3d 763, 766 (7th Cir. 2005). Moreover, to the
extent that Sharif argues that his Texas offense could not constitute “sexual
abuse of a minor” because the “minor” involved was actually an adult, that argu-
ment lacks merit. See id. at 766-67; United States v. Farner, 251 F.3d 510,
511-12 (5th Cir. 2001).
Accordingly, the petition for review is DENIED.
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