Jorge Cantu v. Eric Holder, Jr.

Case: 13-60848 Document: 00512782323 Page: 1 Date Filed: 09/25/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60848
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 25, 2014
JORGE CANTU, also known as Jorge Luis Cantu,
Lyle W. Cayce
Clerk
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. A039 297 824
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Jorge Cantu is a native and citizen of Mexico who was ordered removed
from this country after an immigration judge (IJ) determined that his prior
conviction for assault pursuant to Texas Penal Code § 22.01(a)(1) is a crime of
violence (COV) under 18 U.S.C. § 16(b), thus rendering him removable
pursuant to 8 U.S.C. § 1101(a)(43) as one who was convicted of an aggravated
felony. Now, Cantu petitions this court for review of the order in which the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-60848 Document: 00512782323 Page: 2 Date Filed: 09/25/2014
No. 13-60848
Board of Immigration Appeals (BIA) dismissed his appeal from the IJ’s
decision.
We do not have jurisdiction to consider challenges to “any final order of
removal against an alien who is removable by reason of having committed
certain designated criminal offenses, including an aggravated felony under . . .
§ 1101(a)(43).” Larin-Ulloa v. Gonzales, 462 F.3d 456, 460 (5th Cir. 2006); see
8 U.S.C. § 1252(a)(2)(C). Nonetheless, we have jurisdiction to consider the
issue whether Cantu’s prior conviction is in fact an aggravated felony for
immigration purposes. See id.
In determining whether a prior conviction falls within a statutory
provision of the Immigration and Nationality Act (INA), we accord substantial
deference to the BIA’s interpretation of the INA and the definitions of phrases
within it. Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir. 2005). We then
review de novo whether the particular statute governing a prior conviction falls
within the relevant INA definition of an aggravated felony, rendering an alien
removable. Id.
Our review of the record shows no error in the disputed order. Insofar
as Cantu argues that he does not have a COV conviction because one may
commit a § 22.01 offense through inconsequential physical contact, this
argument misses the mark. An offense falls under § 16(b) if the risk of
substantial force is likely to arise in a given case. Perez-Munoz v. Keisler, 507
F.3d 357, 362-64 (5th Cir. 2007). “Being able to imagine unusual ways the
crime could be committed without the use of physical force does not prevent it
from qualifying as a crime of violence under § 16(b).” Perez-Munoz, 507 F.3d
at 364; cf. Zaidi v. Ashcroft, 374 F.3d 357, 360-61 (5th Cir. 2004). This
argument is unavailing.
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Case: 13-60848 Document: 00512782323 Page: 3 Date Filed: 09/25/2014
No. 13-60848
Next, Cantu contends that the analysis used in United States v. Fierro-
Reyna, 466 F.3d 324 (5th Cir. 2006) should be used to address the issue
whether his § 22.01 conviction is a COV. This argument is unavailing. Fierro-
Reyna is materially distinguishable from the instant case insofar as it did not
address the question whether a § 22.01(a)(1) offense is a § 16(b) COV because
it involves a substantial risk of physical force. Cantu’s argument that his prior
offense is not a crime involving moral turpitude is misplaced because the BIA
did not consider this issue. The petition for review is DISMISSED for want of
jurisdiction.
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