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

                                                                            FILED
                                                                            June 4, 2008

                                       No. 07-60181                   Charles R. Fulbruge III
                                                                              Clerk

JOSE THOMAS CASTANEDA, a.k.a. JOSE CASTANEDA

                                                  Petitioner
v.

MICHAEL B. MUKASEY, Attorney General of the United States

                                                  Respondent



           Appeal from the United States Board of Immigration Appeals


Before KING, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jose Thomas Castaneda was born in Nicaragua but lived with his parents,
and later with his father, in the United States. His father was a naturalized
citizen. In 1996, Castaneda was convicted of aggravated assault in Texas. The
Immigration and Naturalization Service brought removal charges against him
on the basis of this conviction. Castaneda argued that he was a derivative
citizen and was protected by § 212(c) of the Immigration and Nationality Act.
After several proceedings and appeals, the BIA held that Castaneda was not a




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-60181

derivative citizen and could not be afforded the protections of INA § 212(c).
Castaneda appealed.
                                                  I
        Castaneda was born in Nicaragua on February 14, 1974. His parents were
married in Texas in 1982, and Castaneda and his parents became lawful
permanent residents of the United States that same year.                    In July 1990,
Castaneda’s father became a naturalized citizen of the United States. His
parents then separated.              A December 1991 temporary restraining order
prohibited Castaneda’s father from instituting an action to obtain custody of his
children, and a separate order required his father to pay child support.
Castaneda was not listed as a child required to receive support; Castaneda urges
that this was “presumably because he was in his father’s custody.” In January
1992, Castaneda’s father became Castaneda’s “Temporary Possessory
Conservator” and his mother became “Temporary Sole Managing Conservator”
by appointment of a Texas court. Castaneda’s parents officially divorced in July
1992.
        Later, in June 1996, Castaneda was convicted of aggravated assault with
a deadly weapon under Texas Penal Code § 22.02 and sentenced to six years in
prison. The former Immigration and Naturalization Service1 took him into
custody in October 2000 and charged him as removable pursuant to §
237(a)(2)(A)(iii) of the INA, which classifies as deportable any alien convicted of
an aggravated felony after being admitted to the United States.2                         An
immigration judge held that Castaneda was not a citizen, was removable, and
was ineligible for relief under INA § 212(c), which at the time of Castaneda’s
conviction allowed the United States to admit aliens who had been previously


        1
       The responsibilities of the former INS now reside within three agencies, all under the
Department of Homeland Security.
        2
            8 U.S.C.A. § 1227(a)(2)(A)(iii) (West 2004).

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                                         No. 07-60181

lawfully admitted to the United States for permanent residence and “proceeded
abroad voluntarily,” provided they had not committed certain criminal offenses.3
The IJ also denied Castaneda’s claim for protection under the Convention
Against Torture. Castaneda appealed to the Board of Immigration Appeals. In
June 2002, the Board held that Castaneda had derivative citizenship under INA
§ 321(a), thus rendering him ineligible for deportation.4 The Government filed
a motion to reconsider. The BIA granted the motion, determining in November
2003 that it had erred in holding that Castaneda had derivative citizenship. The

       3
         8 U.S.C. § 1182(c) (West 2008, effective as of April 24, 1996) (repealed) (“Aliens
lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and
not under an order of deportation, and who are returning to a lawful unrelinquished domicile
of seven consecutive years, may be admitted in the discretion of the Attorney General without
regard to the provisions of subsection (a) of this section (other than paragraphs (3) and (9)(C)).
Nothing contained in this subsection shall limit the authority of the Attorney General to
exercise the discretion vested in him under section 1181(b) of this title. This subsection shall
not apply to an alien who is deportable by reason of having committed any criminal offense
covered in section 1251(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by
section 1251(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to the
date of their commission, otherwise covered by section 1251(a)(2)(A)(i) of this title.”).
       4
           18 U.S.C. 1432(a) (West 1999). Section 321(a) then provided,

                A child born outside of the United States of alien parents, or of an alien
                parent and a citizen parent who has subsequently lost citizenship of the
                United States, becomes a citizen of the United States upon fulfillment of
                the following conditions:

                (1) The naturalization of both parents; or
                (2) The naturalization of the surviving parent if one of the parents is
                deceased; or
                (3) The naturalization of the parent having legal custody of the child
                when there has been a legal separation of the parents or the
                naturalization of the mother if the child was born out of wedlock and the
                paternity of the child has not been established by legitimation; and if
                (4) Such naturalization takes place while such child is under the age of
                eighteen years; and
                (5) Such child is residing in the United States pursuant to a lawful
                admission for permanent residence at the time of the naturalization of
                the parent last naturalized under clause (1) of this subsection, or the
                parent naturalized under clause (2) or (3) of this subsection, or thereafter
                begins to reside permanently in the United States while under the age
                of eighteen years.

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                                         No. 07-60181

BIA vacated its prior decision and denied Castaneda’s motion for remand,
holding that he was ineligible for § 212(c) relief because his conviction under
Texas law was an aggravated felony involving a crime of violence, and aliens
convicted for this type of crime may not be considered for admission under §
212(c). Castaneda petitioned the BIA to reconsider its denial of his derivative
citizenship claim. The BIA denied that motion but remanded for the IJ to
consider Castaneda’s application for relief under § 212(c). Once again before the
IJ, the Department of Homeland Security added a charge for removability under
INA § 237(a)(2)(C)5 on the grounds that Castaneda’s conviction for aggravated
assault under Texas Law fell under § 237’s definition of a firearms offense. The
IJ held that Castaneda was removable under § 237(a)(2)(C) and that he was
ineligible for § 212(c) relief. Castaneda again appealed to the BIA, which denied
his claim of derivative citizenship and affirmed the IJ’s holding that he was
removable and ineligible for § 212(c) relief.
                                                II




       5
           Section 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C) (West 2004) then provided, as its does
now,
                (a) Classes of deportable aliens

                Any alien (including an alien crewman) in and admitted to the United States
                shall, upon the order of the Attorney General, be removed if the alien is within
                one or more of the following classes of deportable aliens:

                2) Criminal offenses

                (C) Certain firearm offenses

                Any alien who at any time after admission is convicted under any law of
                purchasing, selling, offering for sale, exchanging, using, owning,
                possessing, or carrying, or of attempting or conspiring to purchase, sell,
                offer for sale, exchange, use, own, possess, or carry, any weapon, part, or
                accessory which is a firearm or destructive device (as defined in section
                921(a) of Title 18) in violation of any law is deportable.

                                                   4
                                         No. 07-60181

       We have very limited jurisdiction to consider challenges to removal orders
based on the commission of an aggravated felony;6 we may only review
“constitutional claims or questions of law”7 raised by Castaneda.
       On appeal, Castaneda argues that the Government waived its claim that
Castaneda did not have derivative citizenship by adopting the IJ’s statement of
facts and opinion. The Government did not waive its claim, as the IJ held that
Castaneda was removable – that he did not have derivative citizenship – and the
Government could not have appealed that matter. The Government did contest,
through a motion to reconsider, the BIA’s derivative citizenship finding when the
BIA sustained Castaneda’s appeal from the IJ and held that he had derivative
citizenship. As we have discussed, the Board on reconsideration vacated its
earlier decision, finding that it had erred as a matter of law in holding that
Castaneda had derivative citizenship.
       Castaneda also argues that the BIA erred in holding that he lacked
derivative citizenship. He urges that INA § 321, which defines derivative
citizenship, does not require that the naturalized parent have sole legal custody.
We held in Bustamente-Barrera v. Gonzales that “only sole legal custody
satisfies” § 321’s requirements.8
       Alternatively, Castaneda urges that he is a citizen under the amended
provisions of the Child Citizenship Act. On February 27, 2001, the effective date


       6
         Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir.) (“The [REAL ID] Act amends
8 U.S.C. § 1252(a)(2)(C) to preclude all judicial review, habeas or otherwise, where a removal
order is based on, inter alia, the alien’s commission of an aggravated felony.”), cert. denied, 127
S. Ct. 40 (2006).
       7
         Id. (The REAL ID Act also provides, “‘[n]othing in subparagraph (B) or (C), or in any
other provision of this chapter (other than this section) which limits or eliminates judicial
review, shall be construed as precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court of appeals in accordance with
this section’” (quoting 8 U.S.C. § 1252(a)(2)(D))).
       8
           447 F.3d 388, 395-96 (5th Cir. 2006), cert. denied, 127 S. Ct. 1247 (2007).

                                                5
                                        No. 07-60181

of the Act, Castaneda was over 18 years old. In Nehme v. INS, we held that the
amended provisions of the act may “only be applied to alien children who satisfy
the statute’s conditions on or after February 27, 2001,” including the condition
that the child is under 18 years of age.9 Castaneda was more than 18 years of
age as of February 27, 2001.
                                              III
       We now turn to Castaneda’s argument that his conviction under Texas law
for aggravated assault with a deadly weapon is not a firearm offense as defined
by 8 U.S.C. § 1227(a)(2)(C). As a result, he urges, he is eligible for relief under
§ 212(c) of the INA. There are two approaches to interpreting whether the
statute under which an alien is convicted falls within the definition of §
1227(a)(2)(C). The traditional approach is categorical, wherein we look to the
language of “the statute under which the alien was convicted rather than at the
particular underlying facts.”10 An “aggravated assault” under Texas Penal Code
§ 22.02(a)(2), the statute under which Castaneda was convicted, does not require
the use or possession of a firearm for conviction; aggravated assault occurs
where a defendant “(1) causes serious bodily injury to another, including the
person’s spouse; or (2) uses or exhibits a deadly weapon during the commission
of the assault.”11 But our inquiry does not end here.
       We follow a second approach to statutory interpretation, the “modified
categorical approach,” “[i]f the statute of conviction defines multiple offenses, at
least one of which does not describe an aggravated felony [under 8 U.S.C. §


       9
         252 F.3d 415, 431 (5th Cir. 2001). Castaneda urges that we revisit our holding in
Nehme. We may not do so. See United States v. Treft, 447 F.3d 421, 425 (5th Cir. 2006) (citing
United States v. Anderson, 853 F.2d 313, 320 (5th Cir. 1988)) (“Absent an intervening Supreme
Court or en banc decision or a change in statutory law, we are bound to follow a prior panel’s
decision.”).

       10
            Omari v. Gonzales, 419 F.3d 303, 307 (5th Cir. 2005).
       11
            Emphasis added.

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                                         No. 07-60181

1227(a)(2)(A)(iii)].”12 This approach is not limited to § 1227. More generally,
appellate courts are to follow this type of approach where the charging document
contains broader language than the statutory offense in question. In Shepard
v. United States, for example, the Armed Career Criminal Act mandated a
minimum 15-year sentence for anyone who possessed a firearm after having
been convicted three times “for serious drug offenses or violent felonies.”13
Under the Act, burglary was “a violent felony only if committed in a building or
enclosed space (‘generic burglary’).”14 It was not possible to determine from
Shepard’s charge, to which he had pled guilty, whether he had been convicted
for generic burglary. The Supreme Court held that the general standard of
statutory interpretation is the same whether a defendant is convicted by a jury
or pleads guilty to charges.15 Pursuant to Taylor v. United States, the sentencing
court looks to “statutory elements, charging documents, and jury instructions to
determine whether an earlier conviction after trial was for generic burglary” and
similarly, where there is a guilty plea, “a later court determining the character
of an admitted burglary is generally limited to examining the statutory
definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.” The court may not look to police reports.16 The purpose
of this limited inquiry is to read “statutes to avoid serious risks of
unconstitutionality” and, consistent with Apprendi, “to limit the scope of judicial
factfinding on the disputed generic character of a prior plea, just as Taylor


      12
           Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. 2006).
      13
           544 U.S. 13, 15 (2005).
      14
           Id. at 15-16.
      15
           Id. at 19.
      16
           Id. at 16, 26 (citing Taylor v. United States, 495 U.S. 575 (1990)).

                                                7
                                             No. 07-60181

constrained judicial findings about the generic implication of a jury’s verdict.”17
A judicial determination on a disputed finding of fact underlying a plea or a jury
verdict “raises the concern underlying Jones and Apprendi: the Sixth and
Fourteenth Amendments guarantee a jury standing between a defendant and
the power of the State, and they guarantee a jury’s finding of any disputed fact
essential to increase the ceiling of a potential sentence.”18
          Following Shepard, we have held under a modified categorical approach
that we may make “‘reference to the record of conviction for the limited purpose
of determining whether the alien’s conviction was under the branch of the
statute that permits removal.’”19 It follows that where, as here, a statute
“defines multiple offenses, at least one of which does not describe” a firearms
offense under 8 U.S.C. § 1227(a)(2)(C), we may look to the record of conviction
to determine whether the conviction under the state statute falls within the
ambit of § 1227(a)(2)(C) – defining as deportable an alien who has committed a
firearms offense. Castaneda’s indictment charged him with committing an
aggravated assault by use of a firearm.                     Under the modified categorical
approach, this confirms that his felony conviction under the Texas Code was for
assault with a firearm. The definition of a firearm under the Texas Code
corresponds with the federal definition.20 Castaneda’s conviction therefore falls

          17
          Id. at 25-26 (citing Apprendi v. New Jersey, 530 U.S. 466 (2000); Jones v. United
States, 526 U.S. 227, 239 (1999); Almendarez-Torres v. United States, 523 U.S. 224 (1998)).
          18
               Id. at 25.
          19
               Larin-Ulloa, 462 F.3d at 464 (quoting Dickson v. Ashcroft, 346 F.3d 44, 48-49 (2d Cir.
2003)).
          20
          Texas Penal Code § 22.02 defines aggravated assault, inter alia, as the use or
exhibition of “a deadly weapon during the commission of the assault,” Texas Penal Code §
1.07(a)(17) includes “firearm” within its definition of a “deadly weapon,” and Texas Penal Code
§ 46.01(3) defines “firearm” as “any device designed, made, or adapted to expel a projectile
through a barrel by using the energy generated by an explosion or burning substance or any
device readily convertible to that use.” 18 U.S.C. § 921(a)(3) defines a firearm, inter alia, as
“any weapon . . . which will or is designed to or may readily be converted to expel a projectile

                                                    8
                                       No. 07-60181

within the definition of a firearm offense under 8 U.S.C. § 1227(a)(2)(C), and the
BIA did not err in holding that the protections of INA § 212(c) do not apply to
Castaneda.21
       AFFIRMED.




by the action of an explosive.”
       21
          “Under former § 212(c) of the Immigration and Nationality Act . . . a lawful
permanent resident . . . subject to removal could apply for a removal waiver if the basis of
removal was analogous to a ground of inadmissibility under INA § 212(a).” Falaniko v.
Mukasey, 2008 WL 1696968, No.07-9516 at *1 (10th Cir. Apr. 9, 2008) (unpublished); see also
Brieva-Perez v. Gonzales, 482 F.3d 356, 358 (5th Cir. 2007) (discussing a BIA decision holding
that a petitioner’s crime “lack[ed] a comparable ground for inadmissibility under INA §
212(a)”). In this case, there is no ground of inadmissibility under § 212(a) comparable to a §
237(a)(2)(C) firearms offense.

                                              9
