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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60159

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 CALIFORNIA PENAL CODE § 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.

United States Court of Appeals

Fifth Circuit

F I L E D

June 4, 2009

Charles R. Fulbruge III

Clerk
No. 08-60159

2

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 CALIFORNIA PENAL CODE § 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.

CAL. PENAL CODE § 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
No. 08-60159

3

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
No. 08-60159

4

(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 CAL. PENAL CODE § 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.
No. 08-60159

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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.” OKLA. STAT. ANN. TIT. 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). 
No. 08-60159

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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 CAL. PENAL CODE § 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.