Rodriguez v. Holder

• Decision Date: 16 January 2013
• Docket Number: No. 10–60763.,10–60763.
• Citation: 705 F.3d 207
• Parties: Esau RODRIGUEZ, also known as Esau Acosta Rodriguez, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

705 F.3d 207

Esau RODRIGUEZ, also known as Esau Acosta Rodriguez, Petitioner,

v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 10–60763.

United States Court of Appeals,Fifth Circuit.

Jan. 16, 2013.

Orlando Mondragon, Law Office of Orlando Mondragon, El Paso, TX, for Petitioner.

Liza S. Murcia, David V. Bernal, Assistant Director, Tangerlia Cox, U.S. Department of Justice, OIL, Washington, DC, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before DENNIS, CLEMENT, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Esau Rodriguez, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (BIA) that he is removable for having been convicted of an aggravated felony. Because the record does not establish that Rodriguez was convicted of an aggravated felony, as defined in 8 U.S.C. § 1101(a)(43), we grant his petition and vacate the order of removal.

I

In 2002, Rodriguez pleaded guilty to violating Texas Penal Code section 22.011 and was placed on deferred adjudication. Rodriguez was placed on community supervision and, in 2006, pleaded true to violating the terms of that supervision by drinking intoxicating beverages and failing to remain within Deaf Smith County, Texas. Rodriguez was adjudicated guilty and sentenced to four years of imprisonment. In 2010, he was served with a Notice to Appear, charging him with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), asserting that his conviction of the Texas offense of attempted sexual assault was an aggravated felony.

The immigration judge (IJ) issued an oral decision finding that Rodriguez was removable because he had been convicted of an aggravated felony. The IJ concluded that Rodriguez's conviction for attempted sexual assault under Texas Penal Code section 22.011 was a crime of violence as defined in 18 U.S.C. § 16(b) because the offense presented a substantial risk of the use of physical force against another. The IJ ordered Rodriguez removed to Mexico.

The BIA dismissed Rodriguez's appeal, holding that the “relevant portions” of section 22.011, which it determined were subsections (a)(1)(A)–(C) and (b), qualified as a crime of violence under 18 U.S.C. § 16(b) and that Rodriguez's offense qualified as an aggravated felony because he was sentenced to more than one year of imprisonment, rendering him removable. Rodriguez timely petitioned this court for review pursuant to 8 U.S.C. § 1252.

II

“We must begin by determining whether we have jurisdiction to review the BIA's decision,” which we do de novo.¹ “Congress has specifically commanded 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.” ² We do, however, have jurisdiction to review jurisdictional facts.³ “[W]hether an offense constitutes an aggravated felony is a purely legal” question, which we review de novo.⁴

III

“Any alien who is convicted of an aggravated felony at any time after admission is deportable.” ⁵ An “aggravated felony” is defined as “murder, rape, or sexual abuse of a minor” or “a crime of violence (as defined in [ 18 U.S.C. § 16] ...) for which the term of imprisonment [is] at least one year.” ⁶Section 16 defines “crime of violence” in pertinent part as an offense “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” ⁷

To determine whether an alien's guilty plea conviction constitutes an aggravated felony for removal purposes, this court applies the “categorical approach” adopted in Taylor v. United States.⁸ The categorical approach considers only the statutory definition of the offense of conviction, rather than the underlying facts of the actual offense, to determine whether the offense meets the definition of an aggravated felony.⁹ However, “[i]f the statute of conviction defines multiple offenses, at least one of which does not describe an aggravated felony, we apply a modified categorical approach.” ¹⁰ Under the modified categorical approach, we may examine certain additional documents in the convicting court's record to determine whether the guilty plea conviction “necessarily” fell under a particular subsection of the statute that meets the aggravated felony criterion.¹¹ The state court documents that may be considered include the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” ¹² If these documents are insufficient to establish that the alien was necessarily convicted of an aggravated felony, the conviction may not be used as a basis for deportation. ¹³

At the time of Rodriguez's conviction, section 22.011 of the Texas Penal Code read as follows:

(a) A person commits an offense if the person:

(1) intentionally or knowingly:

(A) causes the penetration of the anus or female sexual organ of another person by any means, without that person's consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or

(C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or

(2) intentionally or knowingly:

(A) causes the penetration of the anus or female sexual organ of a child by any means;

(B) causes the penetration of the mouth of a child by the sexual organ of the actor;

(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or

(E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.

(b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:

(1) the actor compels the other person to submit or participate by the use of physical force or violence;

(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;

(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;

(4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;

(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;

(6) the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substancewithout the other person's knowledge;

(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;

(8) the actor is a public servant who coerces the other person to submit or participate;

(9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor; or

(10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser.

(c) In this section:

(1) “Child” means a person younger than 17 years of age who is not the spouse of the actor.¹⁴

Rodriguez's indictment charged in count one that Rodriguez “intentionally or knowingly cause[d] the penetration of the female sexual organ of J.S. by defendant's sexual organ, without the consent of J.S.” Count two charged that he “intentionally or knowingly cause[d] the female sexual organ of J.S. to contact the defendant's sexual organ, without the consent of J.S.” The BIA implicitly held that Rodriguez was convicted under subsection (a)(1) of section 22.011. The language of the indictment indeed tracks the language of subsections (a)(1)(A) and (C), specifically noting that the offense was committed “without the consent” of the victim. The indictment did not charge Rodriguez with sexual assault of a “child,” which would be an offense under subsection (a)(2). The Government concedes that in determining whether Rodriguez has been convicted of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), which in turn refers to the definition of “a crime of violence” under 18 U.S.C. § 16, the indictment and record in the Texas court confine our consideration to an offense under section 22.011(a)(1).

Rodriguez's “Adjudication of Guilt” states that “[t]he Sex Offender Registration Requirements ... do apply to the Defendant. The age of the victim at the time of the offense was 16 years of age.” However, this statement does not indicate that the age of the victim was an element of the offense under which Rodriguez was convicted. Nor is this an “explicit factual finding by the trial judge to which the defendant assented.” ¹⁵ Rodriguez did not plead guilty to the sexual assault of a child.¹⁶

Accordingly, the issue before this court is whether a conviction under section 22.011(a)(1) of the Texas Penal Code is categorically a crime of violence under § 16(b), and we must determine “whether the crime inherently involves a substantial risk that intentional physical force may be used in the commission of the crime” to answer that question.¹⁷Section 16(b) encompasses crimes that, while capable of being committed without the use of physical force, always...