           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 4, 2009

                                       No. 08-60159                    Charles R. Fulbruge III
                                                                               Clerk

ELIDIO ROBLES

                                                   Petitioner
v.

ERIC H. HOLDER, JR., Attorney General of the United States

                                                   Respondent




                        Petition for Review of an Order of the
                            Board of Immigration Appeals
                                     A90 168 296


Before KING, GARWOOD, and DAVIS, Circuit Judges.
PER CURIAM:*
       Elidio Robles (“Robles”) petitions for review of an order of the Board of
Immigration Appeals (“BIA”) affirming the decision of the immigration judge
(“IJ”) ordering him removed from the United States. Robles argues that his
conviction under C ALIFORNIA P ENAL C ODE § 289(d) does not constitute a “crime
of violence” under 18 U.S.C. § 16(b), and therefore is not an aggravated felony.
We disagree, and find that a violation of § 289(d) is a crime of violence. We
therefore lack jurisdiction to consider this appeal and dismiss Robles’s petition.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60159



                                I. BACKGROUND
      Robles is a native and citizen of Mexico, and became a lawful permanent
resident in 1989. In 2000, Robles pleaded nolo contendere in a California court
and was later adjudged guilty of violating C ALIFORNIA P ENAL C ODE § 289(d).
That provision states:
       (d) Any person who commits an act of sexual penetration, and the victim
       is at the time unconscious of the nature of the act and this is known to the
       person committing the act or causing the act to be committed, shall be
       punished by imprisonment in the state prison for three, six, or eight years.
       As used in this subdivision, "unconscious of the nature of the act" means
       incapable of resisting because the victim meets one of the following
       conditions:
              (1) Was unconscious or asleep.
              (2) Was not aware, knowing, perceiving, or cognizant that the act
              occurred.
              (3) Was not aware, knowing, perceiving, or cognizant of the essential
              characteristics of the act due to the perpetrator's fraud in fact.
C AL. P ENAL C ODE § 289(d) (2000).
       In 2007, Robles was charged with removability for conviction of an
aggravated felony, that is, rape, under 8 U.S.C.A § 1227(a)(2)(A)(iii) (2006).
Robles filed a motion to terminate the removal proceedings, and argued that a
violation of the California statute did not constitute rape. The Department of
Homeland Security opposed the motion, and filed a new charge that Robles was
removable as his conviction under § 289(d) constituted a crime of violence. The
IJ found this charge to be true and ordered Robles removed. Robles asked to
brief the question of whether his conviction was for a crime of violence, which
request was denied by the IJ.
      Robles appealed to the BIA. The BIA issued an order affirming the order
of the IJ and dismissing Robles’s appeal. The BIA concluded that Robles’s prior
offense was an aggravated felony because it constituted a crime of violence.
Robles now seeks a petition for review from this court.       He argues that his


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conviction under § 289(d) is not for a crime of violence and also that his due
process rights were violated by the IJ’s denial of his briefing request.
                                 II. DISCUSSION
A. Standard of Review
        The jurisdiction of this court in hearing petitions for review is determined
de novo. Nehme v. I.N.S., 252 F.3d 415, 420 (5th Cir. 2001). “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.” Id.; See Zaidi v. Ashcroft, 374 F.3d 357, 358
(5th Cir. 2004). However, “this court always has jurisdiction to determine
whether the petitioner is an alien who is deportable for committing an offense
that bars this court’s review.” Zaidi, 374 F.3d at 359. Thus, the jurisdictional
question of whether this court may hear Robles’s petition must be answered by
this court. “[T]he question of whether an offense constitutes an aggravated
felony is a purely legal one,” and “we review de novo whether an offense
constitutes an aggravated felony.” Patel v. Mukasey, 526 F.3d 800, 802 (5th Cir.
2008)
B. Determining What Constitutes a “Crime of Violence”
        Any alien who is convicted of an aggravated felony is deportable.
8 U.S.C.A § 1227(a)(2)(A)(iii). An aggravated felony includes any “crime of
violence (as defined in section 16 of Title 18, but not including a purely political
offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C.A.
§ 1101(43)(F). Crime of violence is defined in 18 U.S.C.A. §16:
        The term “crime of violence” means--
              (a) an offense that has as an element the use, attempted use, or
              threatened use of physical force against the person or property of
              another, or




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           (b) any other offense that is a felony and 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.
Here, the parties agree that the question is limited to whether a violation of
§ 289(d) is a crime of violence under the terms of § 16(b). “[S]ection 16(b) ‘sweeps
more broadly’ [than § 16(a)] to encompass those crimes that can perhaps be
committed without the use of physical force, but that nevertheless always entail
a substantial risk that physical force may be used.” Larin-Ulloa v. Gonzales, 462
F.3d 456, 465 (5th Cir. 2006) (citing Leocal v. Ashcroft, 543 U.S. 1, 10 (2006)).
Section 16(b) “covers offenses that naturally involve a person acting in disregard
of the risk that physical force might be used against another in committing an
offense.” Leocal, 543 U.S. at 10.
      To determine whether an alien has committed an aggravated felony that
renders him removable, courts apply a categorical approach, referring to the
statutory definition of the crime rather than examining the underlying facts of
the offense. Larin-Ulloa, 462 F.3d at 463. This prevents courts from having to
“relitigate a defendant’s prior conviction.” Id. Courts “look primarily to the text
of the statute violated” to determine whether the conviction was for a crime of
violence. Zaidi, 374 F.3d at 360.
C. Conviction under C AL. P ENAL C ODE § 289(d) as Crime of Violence
      Robles argues that his conviction under § 289(d), while a felony, does not
constitute a crime of violence under § 16(b) because to obtain a conviction under
§ 289(d), the victim must be “unconscious of the nature of the act” and incapable
of resisting, therefore presenting no “substantial risk that physical force will be
used.” We disagree. That argument does not mean that at the time the offense
defined under § 289(d) is committed, there is no substantial risk that physical
force will be used. If the victim regains consciousness while the crime is being
committed, there is a substantial risk that she will resist and that physical force
will be used against her.

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      Robles also argues that violations of § 289(d) could result from consensual
penetration. If the penetration is consensual, there is little likelihood that the
victim will resist upon waking or regaining consciousness, thereby creating no
substantial risk that physical force will be used. In Zaidi, this court determined
that a conviction under Oklahoma’s sexual battery statute constituted a crime
of violence under § 16(b). That statute prohibited the “intentional touching,
mauling or feeling of the body or private parts of any person sixteen (16) years
or older, in a lewd and lascivious manner and without the consent of that other
person.” O KLA. S TAT. A NN. T IT. 21, §1123(B) (West 2002). The court found that
the “risk that physical force will be used to complete the offense of sexual battery
is substantial,” and that the offense was a crime of violence under § 16(b). 374
F.3d at 361. Unlike the Oklahoma statute, § 289(d) does not require the state
to prove that the victim did not consent, however, it is hard to imagine a real
case where an unconscious victim is considered to have consented. A victim who
has not given consent and regains consciousness during the commission of the
crime is highly likely to struggle, and presents a substantial risk that physical
force will be used.
      We need not determine that every possible fact pattern resulting in a
violation of § 289(d) presents a substantial risk of physical force. See James v.
United States, 550 U.S. 192, 208 (2007) (in applying the categorical approach to
determine if a crime was a crime of violence under the United States Sentencing
Guidelines, the Court noted that “[w]e do not view that approach as requiring
that every conceivable factual offense covered by a statute must necessarily
present a serious potential risk of injury before the offense can be deemed a
violent felony.”). We only need to look at the “ordinary” violation of § 289(d) to
determine if it is a crime of violence. See Id. Based on our analysis above, we
find that a conviction under § 289(d) is a conviction for a crime of violence as
defined in § 16(b).

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D. Robles’s Due Process Claims
      Despite limitations on this court’s jurisdiction over final orders of removal,
we retain the right to review constitutional claims brought before us.
§ 1252(a)(2)(C). Robles argues that his due process rights were violated by the
IJ’s refusal to allow him to brief the issue of whether his conviction was for a
crime of violence. “The Fifth Amendment requires that aliens subject to removal
proceedings be provided due process: ‘(1) notice of the charges against him, (2)
a hearing before an executive or administrative tribunal, and (3) a fair
opportunity to be heard.’” Manzano-Garcia v. Gonzales, 413 F.3d 462, 470 (5th
Cir. 2005). An alien’s right to procedural due process is violated only if he is
substantially prejudiced by an immigration court’s actions. Calderon-Ontiveros
v. I.N.S., 809 F.2d 1050, 1052 (5th Cir. 1986). Robles was provided notice of the
crime of violence charge prior to his removal hearing. While he did not have the
opportunity to brief this argument before the IJ, he had the opportunity to be
heard at the removal hearing before the BIA. He has failed to show any
substantial prejudice created by the IJ’s denial of his request, and we find his
due process claim lacks merit.
                               III. CONCLUSION
      Because C AL. P ENAL C ODE § 289(d) describes a crime of violence, Robles’s
conviction qualifies as an aggravated felony under the terms of 8 U.S.C.
§1101(a)(43)(F). This court lacks jurisdiction to review the final order of removal
against Robles because he is removable for having committed an aggravated
felony.   § 1252(a)(2)(C).   The petition is therefore DISMISSED for lack of
jurisdiction.




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