                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                     FILED
                 IN THE UNITED STATES COURT OF APPEALS          November 4, 2004
                          FOR THE FIFTH CIRCUIT
                          _____________________               Charles R. Fulbruge III
                                                                      Clerk
                             No. 03 - 41318
                         ______________________

OSWALDO CALDERON-TERRAZAS,

                                        Petitioner-Appellant,

versus


JOHN ASHCROFT, U.S. ATTORNEY GENERAL;
AARON CABRERA,

                                        Respondents-Appellees.

                  -------------------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                        USDC No. B-02-CV-145
                 --------------------------------

Before KING, Chief Judge, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM*:

     Oswaldo Calderon-Terrazas appeals the district court’s denial

of his 28 U.S.C. § 2241 petition challenging his removal pursuant

to 8 U.S.C. § 1227(a)(2)(A)(iii) because he was convicted of sexual

assault of a child under Texas Penal Code § 22.011, an aggravated

felony. Calderon-Terrazas argues that sexual assault of a child

under Tex. Penal Code § 22.011 is not an “aggravated felony” under

8 U.S.C. §§ 1101(a)(43) and 1101(a)(48). Calderon-Terrazas argues

further   that    the   “automatic”   removal   of   a   long-term      lawful



     *
      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this opinion should not be published and is not precedent except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.
permanent resident with significant ties to the United States

violates substantive due process. In addition, Calderon-Terrazas

asserts    that   the    BIA   erred   in    deciding    his   case   by    summary

affirmance without opinion pursuant to 8 C.F.R. § 3.1(a)(7), now 8

C.F.R. § 1003.1(a)(7).

      Contrary to the Government’s assertions, the district court

had jurisdiction over Calderon-Terrazas’s 28 U.S.C. § 2241 petition

because as an alien who is removable for having committed an

aggravated felony, he is precluded by 8 U.S.C. § 1252(a)(2)(C) from

seeking direct judicial review, and his petition raises questions

of law only. See INS v. St. Cyr, 533 U.S. 289, 314 (2001); Flores-

Garza v. INS, 328 F.3d 797, 802-04 (5th Cir. 2003).

      Moreover, Calderon-Terrazas’s crime of “sexual assault of a

child” under Texas Penal Code § 22.011 qualifies as an aggravated

felony under 8 U.S.C. § 1101(a)(43)(A). 8 U.S.C. § 1101(a)(43)(A)

includes within the scope of the term “aggravated felony” the

enumerated crimes of “murder, rape, or sexual abuse of a minor.” In

U.S. v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000) this

Court held that in determining whether a specific crime constituted

“sexual abuse of a minor” for § 1101(a)(43)(A) purposes, the words

of   the   statute      must   be   read     according    to   “their      ordinary

contemporary meaning.” Texas Penal Code § 22.011(a)(2)(A) says that

“a person commits [the offense of sexual assault] if the person


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intentionally or knowingly causes the penetration of the anus or

sexual organ of a child by any means”. This conduct clearly

constitutes “sexual abuse of a child”. Sexual abuse of a child is

an   enumerated   crime   in   8   U.S.C.    §   1101(a)(43)   and   therefore

expressly declared to be an “aggravated felony”.

      Furthermore, Calderon-Terrazas’s deferred adjudication under

Texas law is a conviction under 8 U.S.C. § 1101(a)(48)(A) because

it involved an admission of guilt and limitations on his liberty.

See Moosa v. INS, 171 F.3d 994, 1005-06 (5th Cir. 1999).

      The district court determined correctly that the statutes that

Calderon-Terrazas    challenges     as     violating   his   substantive   due

process rights are rationally related to a legitimate governmental

purpose. See Brennan v. Stewart, 834 F.2d 1248, 1257-58 (5th Cir.

1988); In re Longstaff, 716 F.2d 1439, 1442-43 & n.16 (5th Cir.

1983).

      Also contrary to the Government’s assertions, the district

court had jurisdiction to review Calderon-Terrazas’s claim that the

BIA erred in using its summary affirmance procedure under 8 C.F.R.

§ 3.1(a)(7), now 8 C.F.R. § 1003.1 (a)(7). See Bravo v. Ashcroft,

341 F.3d 590, 592-93 & n.7 (5th Cir. 2003). The district court did

not err in finding that the BIA properly employed its summary

affirmance in this case. See Soadjede v. Ashcroft, 324 F.3d 830,

831-33 (5th Cir. 2003).

      Accordingly, we conclude that Calderon-Terrazas was not denied


                                     -3-
due process of law and is not entitled to habeas relief.

     AFFIRMED.




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