Rajan Abraham v. Eric Holder, Jr. ( 2013 )

Case: 13-60068 Document: 00512431331 Page: 1 Date Filed: 11/06/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 6, 2013
No. 13-60068
Summary Calendar Lyle W. Cayce
Clerk
RAJAN ABRAHAM,
Petitioner,
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A040 344 396
Before KING, DeMOSS, and GRAVES, Circuit Judges.
PER CURIAM:*
Rajan Abraham, a native and citizen of India, petitions for review of an
order issued by the Board of Immigration Appeals (BIA) which dismissed his
appeal of a removal order. The BIA determined that Abraham was subject to
removal because he was previously convicted of violating § 22.011(a)(2)(C) of the
Texas Penal Code, which is an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(A). Abraham argues that the immigration judge relied upon
improper documentary evidence of his state-court conviction in making this
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 13-60068
determination. Because the BIA did not rely on the immigration judge’s
decision in determining that Abraham was convicted of violating
§ 22.011(a)(2)(C), our review is limited to the BIA’s decision. See
Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010).
Although Congress specifically stated “in 8 U.S.C. § 1252(a)(2)(C) that no
court has jurisdiction to review deportation orders for aliens who are removable
because they were convicted of aggravated felonies,” this court has “jurisdiction
to review jurisdictional facts,” such as “[w]hether an offense [is] an aggravated
felony.” See Rodriguez v. Holder, 705 F.3d 207, 210 (5th Cir. 2013) (internal
quotation marks and citation omitted). “[W]hether an offense constitutes an
aggravated felony is a purely legal question, which we review de novo.” Id.
(internal quotation marks and citation omitted). “‘Any alien who is convicted of
an aggravated felony at any time after admission is deportable.’” Id. (quoting 8
U.S.C. § 1227(a)(2)(A)(iii)). An aggravated felony is defined as, inter alia,
“sexual abuse of a minor.” § 1101(a)(43)(A). In Abraham’s case, the BIA
correctly applied the modified categorical approach to determine under which
part of § 22.011 of the Texas Penal Code Abraham had been convicted and
correctly concluded that Abraham’s conviction qualified as a conviction for
sexual abuse of a minor pursuant to § 1101(a)(43)(A). See Rodriguez, 705 F.3d
at 210-16.
Contrary to Abraham’s assertion, the Government did in fact submit the
indictment as proof of his prior conviction. The indictment charged Abraham
with intentionally and knowingly causing the sexual organ of a child “to contact
and penetrate the mouth of said defendant.” The BIA correctly relied upon the
indictment to determine which subsection of the Texas sexual assault statute
was at issue in Abraham’s offense. See id. The BIA also relied upon Abraham’s
judicial confession. Both Abraham and the presiding judge signed the judicial
confession, which is a sufficiently reliable record for consideration when
characterizing a prior guilty-plea offense. See id. at 211; United States v.
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Garcia-Arellano, 522 F.3d 477, 481 (5th Cir. 2008). The BIA’s reliance on the
indictment and judicial confession was thus proper, see Rodriguez, 705 F.3d at
210-16, and those documents demonstrate, as the BIA concluded, that Abraham
pleaded guilty to violating § 22.011(a)(2)(C), which provides that a person
commits an offense if the person intentionally or knowingly “causes the sexual
organ of a child to contact or penetrate the mouth, anus, or sexual organ of
another person, including the actor.” See Tex. Penal Code § 22.011(a)(2)(C).
Abraham’s challenge to the BIA’s use of documentary evidence therefore lacks
merit.
Abraham does not challenge the BIA’s determination that a conviction
under § 22.011(a)(2)(C) qualifies as sexual abuse of a minor pursuant to
§ 1101(a)(43)(A) or that as such he is removable pursuant to § 1227(a)(2)(A)(iii).
He has therefore abandoned any challenge that he may have to this
determination. See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir.
2010); see also Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). Abraham
has also abandoned by failing to brief a challenge to the BIA’s determinations
that he was not eligible for relief from removal and that his claim regarding lack
of counsel did not warrant relief. See Scroggins, 599 F.3d at 446-47; see also
Soadjede, 324 F.3d at 833.
Finally, Abraham asserts a due process violation which appears to be
based on a misunderstanding about which documents are in the administrative
record and support the determination that he was convicted of violating
§ 22.011(a)(2)(C). “[I]mmigration judges must conduct deportation hearings in
accord with due process standards of fundamental fairness.” Bouchikhi v.
Holder, 676 F.3d 173, 180 (5th Cir. 2012) (internal quotation marks and citations
omitted). “We review a claim of a due process violation de novo. To prevail,
however, the alien must show substantial prejudice.” Id. (internal citations
omitted). In this case the BIA relied on the indictment and the judicial
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confession which demonstrate that Abraham violated § 22.011(a)(2)(C). Thus
Abraham cannot show substantial prejudice on this record.
In light of the foregoing, the petition for review is DENIED.
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