                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 November 30, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-61021
                          Summary Calendar


LUIS ALVARADO-NARVAEZ,

                                    Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                                    Respondent.

                        --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                         BIA No. A11 394 003
                        --------------------

Before KING, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

     Luis Alvarado-Narvaez petitions for review of an order of

the Board of Immigration Appeals (BIA).      Alvarado-Narvaez argues

that the BIA erred by holding, contrary to the conclusion of the

immigration judge (IJ), that his conviction under TEX. PENAL CODE

§ 21.11(a)(1) was an aggravated felony.      This court lacks

jurisdiction to consider petitions for review filed by aliens who

are ordered removed based on the commission of an aggravated

felony.   See U.S.C. § 1252(a)(2)(C).   Nevertheless, this court

does retain jurisdiction to review the issue whether Alvarado-

     *
       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this opinion should not be published and is not precedent except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. 05-61021
                                 -2-

Narvaez’s conviction constitutes an aggravated felony for

immigration purposes.    Omari v. Gonzales, 419 F.3d 303, 306 (5th

Cir. 2005).

     Alvarado-Narvaez has not shown that the BIA erred by finding

that his conviction for indecent contact with a minor, under TEX.

PENAL CODE § 21.11(a)(1), constitutes “sexual abuse of a minor,”

under 8 U.S.C. § 1101(a)(43)(A).    In United States v. Zavala-

Sustaita, 214 F.3d 601 (5th Cir. 2000), this court found that the

lesser offense of indecent exposure with a minor, under TEX. PENAL

CODE § 21.11(a)(2), constituted “sexual abuse of a minor.”    Id.

at 604.   We went on to state,   “[h]ad [the petitioner]’s prior

offenses been § 21.11(a)(1) offenses involving physical contact,

we would clearly treat them as aggravated felonies.”     Id. at 604

n. 1.   Consequently, Alvarado-Narvaez’s petition for review is

DISMISSED for want of jurisdiction to the extent that he seeks

review of the BIA’s determination that he should be removed due

to his commission of an aggravated felony.

     Alvarado-Narvaez also argues that the BIA acted ultra vires

by ordering him removed in the first instance.    We have

jurisdiction to consider this issue.     See James v. Gonzales, 464

F.3d 505, 512-14 (5th Cir. 2006).    Alvarado-Narvaez is correct

insofar as he argues that the BIA should not have issued a

removal order but should have remanded his case to the IJ for

further consideration.    See id.   Accordingly, to the extent that

he challenges the BIA’s authority to issue an order of removal
                           No. 05-61021
                                -3-

against him, his petition for review is GRANTED, and the case is

REMANDED to the BIA for further proceedings consistent with this

opinion.   Because Alvarado-Narvaez has prevailed on this

argument, there is no need to consider his remaining challenges

to the order of removal.
