Cesar Orihuela Castro v. Eric Holder, Jr. , 583 F. App'x 388 ( 2014 )

Case: 14-60039 Document: 00512819201 Page: 1 Date Filed: 10/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-60039 October 29, 2014
Summary Calendar
Lyle W. Cayce
Clerk
CESAR ORIHUELA CASTRO, also known as Castro Orihuela,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A044 962 205
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Cesar Orihuela Castro (Orihuela), a native and citizen of Mexico,
petitions this court for review of the Board of Immigration Appeals’ (BIA)
decision dismissing his appeal of the Immigration Judge’s (IJ) order that he
was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) because he was
convicted of an aggravated felony. He contends that the BIA erred in
concluding that his conviction for sexual assault in violation of TEX. PENAL
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-60039 Document: 00512819201 Page: 2 Date Filed: 10/29/2014
No. 14-60039
CODE ANN. § 22.011(a)(1) was a crime of violence under 18 U.S.C. § 16(b) and,
thus, an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).
Whether an offense is an aggravated felony is a purely legal question
that we review de novo. Rodriguez v. Holder, 705 F.3d 207, 210 (5th Cir. 2013).
Our review is limited to the BIA’s decision, except to the extent the IJ’s decision
affected the BIA’s decision. Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir. 1997).
Unlike Rodriguez, Orihuela’s indictment alleged that the victim’s lack of
consent occurred because she was unconscious and physically unable to resist,
as set forth in § 22.011(b)(3). We have held that when the lack of consent is
achieved because the victim is unconscious, the offense “carries with it the
ever-present possibility that the victim may figure out what’s really going on
and decide to resist, in turn requiring the perpetrator to resort to actual
physical restraint.” Zaidi v. Ashcroft, 374 F.3d 357, 361 (5th Cir. 2004)
(internal quotation marks and citation omitted); see also Rodriguez, 705 F.3d
at 214. Thus, pursuant to the modified categorical approach, Orihuela’s
conviction for sexual assault was a crime of violence under § 16(b) because it
inherently involved a substantial risk that intentional physical force would be
used in the commission of the offense. Cf. Rodriguez, 705 F.3d at 212-15.
Because the BIA did not err in concluding that Orihuela’s sexual assault
conviction was an aggravated felony under § 1101(a)(43)(F), we do not reach
Orihuela’s contention that the IJ erred in concluding that his sexual assault
conviction qualified as an aggravated felony under § 1101(a)(43)(A).
Accordingly, Orihuela’s petition for review is DENIED.
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