### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-60925

ALLAN GUILLERMO RAMOS-GARCIA,
Petitioner

v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

Petitions for Review of an Order of the Board of Immigration Appeals (A039 029 122)

Before KING, HIGGINBOTHAM, and HAYNES, Circuit Judges. PER CURIAM: * 

### Allan Guillermo Ramos-G a r c i a , a p e r m a n e n t r e s i d e n t o f t h e U n i t e d S t ates,

was ordered removed to his native country of Honduras as a consequence of his 2002 conviction for indecent behavior with juveniles. He challenges the Board of Immigration Appeals’s decision on the grounds that his conviction was not for

a removable offense, that the Board abused its discretion by denying his motion for reconsideration, and that h is military service makes him a national of the U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

## F I L E D August 6, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 10-60925 Document: 00511946100 Page: 1 Date Filed: 08/06/2012

### No. 10-60925

United States. For the reasons below, we deny Ramos’s consolidated petitions for review. I. Petitioner Allan Guillermo Ramos-Garcia (Ramos), a native and citizen of Honduras, was admitted to the United States in August 1985 as a lawful permanent resident. In 2002 Ramos pled guilty to indecent be h a v i o r w i th juveniles, in violation of La. Rev. Stat. 14:81. Specifically, he was charged with “wilfully, unlawfully, knowingly and intentionally co m m i t [ ting] lewd or lascivious acts upon...or in the presence of a juvenile [ages 13 and 15]...with the intention of arousing or gratifying the sexual desires of either pe r s o n , in violation of the provi s i o n s o f R.S. 14:81.” He received a suspended three year sentence and five years probation, which he successfully completed in 2007. On July 1, 2009 the Department of Homeland Security served Ramos with

a Notice to Appear, charging he was subject to removal from the United States

as a result of his 2002 conviction. Through counsel, Ramos a d m i t t e d to the factual allegations contained in the notice. He a l so conceded the charge of removability at a hearing before an Immigration Judge (IJ). The IJ entered an order of removal to Ramos’s native country of Honduras. Ramos appealed to the B o a r d of Immigration Appeals (BIA), claiming the conduct proscribed by La

. Rev. Stat. 14:81 does not constitute sexual abuse of a minor, and therefore is not

an aggravated fe l o n y subjecting him to deportation. Because Ramos had previously conceded his conviction subjected him to deportati on, the BIA concluded he was foreclosed from arguing otherwise and dismissed the appeal. Ramos filed two motions to reconsider. He reiterated his argument that his conviction under La. Rev. Stat. 14:81 was not for an aggravated felony, and claimed ineffective assistance of counsel prevented him f r om reasonably presenting his case during his removal hearing before the IJ. He also c laimed he could not be removed f r o m t he United States because his military service

2 Case: 10-60925 Document: 00511946100 Page: 2 Date Filed: 08/06/2012

### No. 10-60925

made him a nati o n a l

. T h e BIA rejected Ramos’s second contention. It concluded, however, that he had substantially satisfied the requirements for a claim of ineffectiv e assistance by showing he was prejudiced by his counsel’s concession of removability. The case was remanded to the IJ. On remand, Ramos again argued the conduct proscribed by La. Rev. Stat. 14:81 does not constitute sexual abuse of a minor. The IJ disagreed, as did the BIA on appeal. The BIA also denied Ramos’s motion for reconsideration on the grounds that he failed to identify any e r r o r of fact or law in its decision that would have altered the outcome of the appeal. Ramos timely filed two petitions for review with this court. II. Although a Court of Appeals generally does not have jurisdiction to review “any final order of removal against an alien who i s r e m o v a ble by reasons of having committed” an aggravated felony, we do have jurisdiction to r e view 1 

### “constitutional claims or questions of law raised upon a petition for review,” such

as whether a prior conviction qualifies as an aggravated felony. In making this 2 

### determination, we give substantial deference to the BIA’s interpretation of the INA, but “review de novo whether the particular statute that the prior conviction is under falls within” the INA’s definition of aggravated felony. If it does, we do 3


### not have jurisdiction to review the removal decision. T h i s c o urt may only 4

8 U. S. C. § 1 252( a)( 2)( C). 1
8 U. S. C. § 1252( a)( 2)( D) ; see al so Lari n-U ll oa v. Go nza le s , 462 F.3d 456, 460- 61, 461 2
n. 6 ( 5th Cir. 200 6).
Ma rtine z v. Muka sey , 519 F.3d 532, 538 (5t h Cir. 2008) (quot ing Om ar i v. Gonz al es , 3 419 F.3d 303, 306 (5t h Cir. 2005) ); see al so Nol os v. Ho lde r , 611 F.3d 279, 281 (5t h Cir. 2010) (“ While we ow e def

ere nce t o the BIA’s inte rp ret atio n of the INA unde r the pr incip les of Chev ron
.. ., ou r revie w of the legal ques tio ns pos ed here is de nov o .” )
Ma rtine z , 519 F.3dat 538

. 4


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### No. 10-60925

review the decision of the BIA, though it will also review the r u l i n g o f t h e IJ where it affected the BIA’s decision. 5 

### III. Ramos first argues that a violation of La. Rev. Stat. 14:81 is not necessarily an aggravated felony for which an alien may be deported. Because

we conclude that his violation of the statute constituted sexual abuse of a minor under § 1101(a)(43) and thus was an aggravated felony under the INA, Ramos is not entitled to relief on this point. U n der 8 U.S.C. § 1227(a)(2)(A)(iii), “[a]ny alien who is convicted o f a n aggravated felony at any time after admission is deportable.” Crimes qualifying

as aggravated felonies are l i s ted under § 1101, and include “murder, rape, or sexual abuse of a minor.” Ramos pled guilty to violating La. Rev. Stat. 14:81 in 6 

### 2002. The record of c o n v i c tion does not provide any information about the specific conduct with which Ramos was charged beyond identifying the victims’
ages. At the time of Ramos’s convictio n L a
. R ev. Stat. 14:81 criminalized indecent behavior with juveniles, meaning

the commission of any l ewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age differenc e of greater than two years between the persons, with the intention of arousing or gratifying the s exual desires of either pe r s o n
. Lack of knowledge of the child’s age shall not be a defense. 7


### To determine whether a guilty plea conviction is an aggravated felony for removal purposes, we apply a “categorical approach” under Taylor v. United

Zhu v

. Go nza le s , 493 F.3d588 , 593 (5t h Cir

. 2007)

. 5
8 U. S. C. § 1 101( a)( 43)(A). 6
La. Rev. Sta t. 14:8 1(A) (200 2). In 2006 this por tio n of the st atut e wa s mo ved to 7 Subs ect ion (A) (1)

. See La. Rev. Sta t. 14: 81(A) (1) ( 2007)

. 

### 4 Case: 10-60925 Document: 00511946100 Page: 4 Date Filed: 08/06/2012

### No. 10-60925

States

. Under this approach, we consider whether the statutory elements of the

8 

### offense and the minimum conduct necessary f o r conviction qualify as sexual abuse of a minor. The underlying facts of the particular c o n v i ction are irrelevant. If the statute of conviction defines multiple offenses, at least one of

9 

### which is not an aggravated felony, we apply a “modified categorical approach.” This requires us to consider the c o n v i c t ion court’s record to determine if the guilty plea necessarily met the criteria for an aggravated felony. Because the 1 0 

### INA does not specifically define the enumerated § 1101(a)(43) offense of “sexual abuse of a minor,” we use its “generic, contemporary meaning and should rely

on a uniform definition regardless of the labels employed by the various States’ criminal codes.” 1 1 

### I n determining what constitutes sexual abuse of a minor, the BIA considers 18 U.S.C. § 3509(a)(8), which states that “‘sexual abuse’ includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the
rape, molestation, prostitution, or other form of sexual exploitation of children.” The BIA has explained, as it did in its decision below, t h a t this is a “useful identification of...those crimes that can reasonably be considered sexual abuse of a minor.” It has also emphasized, however, that “[w]e are not ad o p t ing [§

1 2 

### 3509(a)(8)] a s a definitive standard or definition but invoke it as a guide in

495 U .S

. 575 (199 0). 8
See Uni ted Sta tes v. Ra mo s- Sanc hez , 483 F.3d 400 , 402 (5t h Cir

. 2007)

. 9
Lari n-U

ll oa , 462 F.3d at 464 (c itin g Shep ar d v. Uni ted States , 544 U. S. 13, 20-2 1 1 0 (200 5))

. See Uni ted States v. Do mi nguez -O cha , 386 F.3d 639, 642- 43 (5t h Cir. 2004) (int erna l

1 1 quot atio n m ark s and cit atio ns om itt ed) ( cit ing Tay lor , 495 U. S. at 592 , 598)

.

In re Ro driguez -Ro driguez , 22 I. & N

. De c. 991 , 995- 96 ( BIA 1999)

. 1 2


### 5 Case: 10-60925 Document: 00511946100 Page: 5 Date Filed: 08/06/2012

### No. 10-60925

identifying t h e t ypes of crimes we would consider to be sexual abuse of a minor.” 1 3 

### In addition to the guidance provided by § 3509(a)(8), we c a n l o o k t o the
many cases in which this circuit has defined the generic crime of “sexual abuse of a minor” under § 1101(a)(43). We have explained that “the structure of § 1 4 

### 1101(a)(43) c o unsels against applying a narrow reading of the phrase” sexual abuse o f a minor. Congress grouped this offense with the generic terms 1 5 

### “murder” and “rape” and, unlike other offenses listed in § 1101(a)(43), d i d n o t expressly limit the meaning of “sexual abuse of a minor,” or d e f i n e i t “ b y expressly referencing other provisions of the United States Code, as it did in several other parts of § 1101(a)(43),” all of which “strongly suggests an intent to give a broad meaning” to the term. 1 6 

### “Sexual abuse of a minor” under § 1101(a)(43) co n t a i n s t h r e e elements: “(1) the conduct must involve a ‘child’; (2) the conduct must be ‘sexual’ in nature; and (3) the sexual conduct must be ‘abu s i v e
. ’” The children involved in this case, 1 7


### ages thirteen and fifteen, were clearly minors. An act is sexual if it is “ [ o]f, 1 8 

### pertaining to, affecting, or characteristic of sex, the sexes, or the sex organs and their functions,” and inclu d e s a n y a ct whose purpose is “sexual arousal or

Id. at 996

. 1 3
Mo st of the cas es dis cus sin g the def init ion of “s exual abus e o f a mi nor” unde r § 1 4 1101( a)( 43) do so in a se nten cing rat he r t h a n an im mi grati on cont ext. Ramo s pr es ents no reas on, and we find none, wh y thos e cas es are not app lica ble here for pur pos es of det erm ining the generi c me aning of “ se xual abus e of a mi nor” unde r the sam e st atut ory pr ovis ion. See Uni ted Sta tes v. N

aje ra -N aje ra , 519 F.3d 509 , 512 n. 2 ( 5th Cir. 200 8).
Uni ted Sta tes v. Za va la -Sus taita , 214 F.3d 601, 605 ( 5th Cir. 200 0). 1 5
Id. at 605 -07. 1 6
Uni ted States v. Espa rz a-Andr ade , 418 Fed. App x. 3 5 6 , 3 5 8 ( 5th Cir. 2011) (p er 1 7
cur iam ) (unp ublis hed) ( cit ing Na jer a- Na jer a , 519 F.3dat 511 ).
See Zav al a- Sustai ta , 214 F.3d at 604 ( inte rnal quot atio n m ark s om itt ed)

. 1 8


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### No. 10-60925

gratification.” Abusive conduct is similarly broadly defined. Abuse means “to 1 9



### use wrongly or improperly or to hurt or injure by maltreatment.” A sexual act 2 0 

### does not require physical contact with a minor to be abusive, since psychological harm may occur even without such c o n t a c t

. F u r t h e r m o r e, “we have established 2 1 

### a per se rule that gratifying or arousing one’s sexual desires in the presence of

a child is abusive because it i n v olves taking undue or unfair advantage of the minor.” We have therefore held that sexually suggestive contact with or in the

2 2 

### presence of a minor is sexual abuse. 2 3 

### Ramos’s conviction involved all three of these elements, and therefore was “sexual abuse of a minor.” The statute requires that the conduct i n v olve a person “under the age of seventeen,” and Ramos specifically pled guil t y to a charge involving a thirteen and a fifteen year old. It also requires a sexual act, 2 4 

### since the defendant must commit a “lewd or lascivious act... w i t h t he intention

Id. (m odi fic atio n in orig inal) (quo ting AME R ICAN H E R IT A GE D IC T IO N

AR Y 1124 (2d 1 9 College ed. 1982) ); see al so Uni ted States v. Iza guir re- Flor es , 405 F.3d 270, 275 (5t h Cir. 2005) (“ Webs ter ’s Third Ne w I n te rn a ti on a l Di cti onar y def ines ‘s exual’ as ‘of, rela ting to, or ass ocia ted wi th se x as a char act eris tic of an organi c being. ’ It is the ref ore clear that a [N .C. Ge n. Stat. ] Sec t i o n 1 4-20 2.1( a)( 1) violat ion is se xual beca use it mus t have se xual grati fic atio n as its pur pos e.” ) (f

oot note s om itt ed) ; Uni ted States v. Di az -Iba rra , 522 F.3d 343, 349 (4t h Cir. 2008) (f indi ng that the com mo n me aning of se xual is “of or rela ting to the sp here of behavio r ass ocia ted wi th libid inal grati fic atio n.” ); Baha r v. A s h c r of t , 264 F.3d 1309, 1312 (11t h Cir. 2001) (“ [T] he wo rd ‘s exual’ in the phr ase ‘s exual abus e of a mi nor’ indi cat es that per pet rat or’ s inte nt in com mi tti ng t he abus e i s to se ek li bidi nal grati fic atio n.” )

Zav al a- Sustai ta , 214 F.3d a t 604 (int erna l mo dif icat ions and quot atio n mar ks 2 0
om itt ed) ( quot ing AME R ICAN H E R IT A GE D IC T IO N

AR Y 70 (2dCol lege ed. 198 2))

. Id. at 604, 605 ; see a ls o D iaz- Ibarr a , 522 F.3dat 349 -50. 2 1
Un i te d States v. Ac osta , 401 Fed. App x. 972, 973 (5t h Cir. 2010) (int erna l 2 2
mo dif icat ions and quo tat ion mar ks om itt ed)

. Uni ted States v. Bal der as -Rub io , 499 F.3d 470, 473 (5t h Cir. 2007) ; see al so Iza guir re- 2 3 Flor es , 405 F.3d at 275- 76 (“ Gr atif ying or arou sin g one’ s se xu a l d e s i r es in the act ual or cons tru cti ve p res ence of a child is s exual abus e o f a m inor .” )
La. Rev. S tat

. 14:8 1. 2 4


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### No. 10-60925

of arousing or gratifying the sexual desires of either person.” Under Louisiana 2 5 

### law, lewd and lascivious conduct means an act “which is lus t ful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a w a n t o n manner.” 2 6 

### The statute also requires th a t t h e a c t be committed with “the intention of arousing or gratifying the sexual desires” of the defendant or the minor. 2 7 

### Finally, the sexual act must be done to the minor’s person, or in the minor’s
presence, both of which cons t i t u te abusive conduct under § 1101(a)(43). For 2 8 

### these reasons, Ramos’s violation of La. Rev. Stat. 14:81 constitutes sexual abuse of a minor under § 1101(a)(43). 2 9 

### Ramos challenges this conclusion with several arguments, none of which

are availing. He contends that “[s]exual abuse of a m i n o r requires sexual

c o n d u c t performed against a minor by an adult,” and therefore that sexu a l actions in the presence of a minor but no t a gainst the minor’s person cannot constitute an aggravated felony. As discussed above, however, we have

Id. 2 5
State v. Interi ano , 868 So. 2d 9 , 1 5 ( L a
. 2 004) (quo ting State v. Ho ls tead , 354 So. 2d 2 6 493, 497- 98 (La. 1977) ); s ee al so Ac osta , 401 Fed. App x. at 973 (ho ldi ng that lew d and las civio us act ions ar e i nhere ntly se xual).

L a
. R ev. Sta t. 14:8 1; see al so State v. Borde n , 986 So. 2d 158, 167 (La. App

. 5 Cir. 2 7 2008) ( “Inde cent be haviorw ith a juven ile is a s pec ifi c inte nt cri me f or wh ich the St ate m ust pr ove the off

ende r’s in tent t o a rous e o r grati fy his s exual des ires

.. .. ”)
La. Rev. Sta t. 14:8 1; Bal der as -Rub io , 499 F.3d at 473; Iza guir re- Flor es , 405 F.3d at 2 8 275- 76.
We note that La. Rev. Sta t. 14:8 1 clos ely res em bles Sec tio n 800. 04(3 ) (198 7) of the

2 9 Flori da Code , wh ich pr ovid es fo r th e convic tion of “[ a]ny per so n wh o.. .[ k] now ingly com mi ts any lew d or las civio us ac t i n the pr es ence of any child unde r the age of 16 years wi thou t com mi tti ng the cri me of se xual batt ery. ” The Elevent h Circ uit held in Uni ted States v. Padi ll a- Reye s , 247 F.3d 1158 (11t h Cir. 2001) that a violat ion of this st atut e cons tit utes se xual abus e of a mi nor unde r § 1101( a)( 43). Lik e the Flori da st atut e, the Louis iana st atut e doe s not requ ire the child be “a st im ulus for the se xual dis play, ” sin ce the child may be harm ed by the dis play even if it wa s not mo tivat ed by t he child ’s p res ence
. See Interi ano , 868 So. 2d at 16. 

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### No. 10-60925

repeatedly held that sexual abuse may occur when a sexual act is performed in the presence of a minor. Ramos also claims that La. Rev. S tat. 14:81's 3 0 

### prohibition against “lewd and lascivious conduct” criminalizes a c t s such as kissing that could not constitute s e x u a l abuse of a minor under federal law. 3 1 

### Even if we were to accept Ramos’s contention that kissing alone is not sufficient to constitute sexual abuse of a minor under § 1101(a)(43), his argument would fail. The Supreme Court has held that

to find that a state statute creates a crime out s ide the generic definition of a listed crime in a fede r a l s t atute requires more than the application of legal imagination to a state statute’s language. It re q u i res a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the gene r i c d efinition of a crime. To show that realistic probability, an offender, o f c ourse, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues. 3 2



### Ramos identifies no c a s e in which La. Rev. Stat. 14:81 has been used to prosecute a defendant solely for k issing a minor, or for kissing another person

See, e. g., Uni ted States v. Bal der as -Rub io , 499 F.3d at 473; Iza guir re- Flor es , 405 F.3d 3 0 at 275- 76; Zav al a- Sustai ta , 214 F.3d at 605; see al so D iaz- Ibarr a , 522 F.3d at 350 (“[ O] nce a def enda nt mi sus es the minor wi th the intent to achie ve se xual grati fic atio n, the act of abuse is com ple te, irr es pec tive of wh ethe r the mi nor suf fer ed so me phys ical or ps ycholo gical injury. ”) (c itin g Uni ted States v. Baron -M edi na , 187 F.3d 1144, 1147 (9t h Cir. 1999) ; Padi ll a- Reyte s , 247 F.3dat 116 3))

.

Ramo s reli es on Jam es v. Muk as ey , 522 F.3d 250, 258 (2d Cir. 2008) , wh ich conc lude d 3 1 that k iss ing c ouldno t cons tit ute se xual abus e of a mi nor. The Sec ond Circ uit bas ed this on its inte rp ret atio n of 18 U. S. C. § 3509( a)’ s defini tio n of sexual abus e. Altho ugh the BIA look s at § 3509( a) for guidan ce in def ining se xual abus e of a mi nor, it has not ado pt ed that def init ion
as a “ def init ive st andar d. ” See Rodr igue z , 22 I. & N

. De c. 991 , 996.
Go nza le s v. D uena s-Al va rez , 549 U. S. 183 , 193 (200 7). 3 2


### 9 Case: 10-60925 Document: 00511946100 Page: 9 Date Filed: 08/06/2012

### No. 10-60925

in the presence of a minor. He therefore has not i d e n t i f i e d a reasonable 3 3 

### probability that the statute would be applied in this manner. Ramos also contends a defendant could be convicted under La. Rev. Stat. 14:81 me r e l y f

o r committing a lewd and lascivious action within a child’s physical proximity. The Louisiana Supreme Court held in State v. Interiano , however, that a defendant only violates 14:81 if he knowingly commits “a sexual act such t h a t t h e c h i ld sees or senses that a sexual act is taking place.” We 3 4 

### have held that thi s suffices to constitute sexual abuse of a minor under § 1101(a)(43). Ramos objects to any reliance on the reasoning of Interiano on the

3 5 

### b a s i s that it was decided two years after his conviction. This argume n t i s unpersuasive. Once again, Ramos has identified no case in which a state court

ever applied the statute in this broad and theoretical manner. He therefore has not shown a reasonable probability that the statute creates a crime outside the generic definition of sexual abuse of a minor. 3 6 

### Finally, Ramos urges us to adopt the more narrow definition of “sexual

a b u s e of a minor” contained in 18 U.S.C. § 2243. We have previously reje c t e d

Ramos relies on State v. A nder son , 38 S o.3 d 953 (La. Ap p. 5 Cir. 201 0) and State v. 3 3 Rol li ns , 581 So. 2d 37 9 ( L a
. A p p
. 4 Cir. 1991)

. Both of thes e cas es involved mo re than just ki ss ing. The def

end a n t i n Ande rso n wa s pr os ecut ed bas ed on a mi nor’ s clai m that they rep eate dly fr ench ki ss ed in a par ki ng lot for hours at a tim e and dis cus se d the mi nor’ s se xual expe rien ces
. The cour t note d that cas es of inde cent behavio r wi th a juvenile in wh ich ki ss ing had occ urr ed unif

orm ly involved mo re t h a n j u st ki ss ing, that the def enda nt’ s behavio r had b een rep eate d num ero us tim es , and that the sur round ing cir cum st ance s indi cat ed “ t h e def enda nt inte nded t o a rous e o r grati fy” s exual des ires through his ac tio ns. See 38 S o.3 d at 958- 59 (c itin g S ta te v
. L o u vi ere , 602 So. 2d 1042, 1044 (La. App

. 4 Cir. 1992) ). In Rol li ns , mi nors clai me d not only that the def enda nt ki ss ed them , but als o that he rubbe d thei r bod ies , for ced them to sit on his lap w hile he mo ved up anddow n, and rubbe d thei r bod ies dow n the fr ont of his ow n bo dy. See 581 So. 2d at 382- 83.

Interi ano , 868 So. 2d at 16. 3 4
See Zav al a- Sustai ta , 214 F.3d at 604 (ho ldi ng that se xual abus e of a mi n o r o ccu rs 3 5 wh en a d efe ndant c om mi ts a se xual a ct “w ith kn ow led ge o f the child ’s p res ence .” )

See Du ena s-Al va rez , 549 U. S. at 193

. 3 6


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### No. 10-60925

the claim that “sexual abuse of a minor” must be defined by reference to § 2243. Congress chose not to expressly reference § 2243 in § 1101(a)(43), indicating its intent not to incorporate that section’s definition of sexual abuse into § 1101(a)(43). Ramos gives us no reason to find otherwise here.

3 7 

### Because Ramos’s conviction under La. Rev. Stat. 14:81 constitutes “sexual abuse of a minor” under § 1101(a)(43) and therefore is an aggravated felony for removal purposes, we do not have jurisdiction to review t h e removal order. 3 8 

### Ramos’s petition for review on this issue is denied. IV. Ramos next claims the BIA erred by denying his motion for reconsideration. “We review the denial of a motion to reconsid e r f o r abuse of discretion.” Such a motion may be granted if the petitioner identifies “a change

3 9 

### in the law, a misapplication of the law, or an aspect of the case that the BIA overlooked.” In his motion to reconsider, Ramos reiterated the same

4 0


### arg u m e nts he had previously made before the Board, and which we rejected above. On appeal, he also contends the Board err e d b e c ause it focused on the legislative intent behi n d La. Rev. Stat. 14:81 instead of on the essential elements

o f t he offense. This second argument was not made in Ramos’s motion to reconsider and is therefore an unexhausted claim of error that we lack j u r i s d i ction to review. Even if we agreed with Ramos, however, any alle g e d 4 1



### errors were harmless because the BIA properly concluded that Ramos is subject

Zav al a- Sustai ta , 214 F.3dat 607 n. 8. 3 7
Ma rtine z , 519 F.3dat 538

. 3 8
Zhao v. G onz al es , 404 F.3d295 , 301 (5t h Cir

. 2005)

. 3 9
Id. (c itin g Pie rre v. INS , 932 F.2d 418, 422 (5t h Cir. 1991) ); 8 U. S. C. § 1229a( c) (6) (C) ; 4 0 8 C. F.R. § 1003. 2(b) (1)

.

See Om ar i v. H

old er , 562 F.3d 314 , 320 (5t h Cir

. 2009) ; 8 U .S .C. § 1252( d)

. 4 1


### 11 Case: 10-60925 Document: 00511946100 Page: 11 Date Filed: 08/06/2012

### No. 10-60925

to deportation based on his 2002 conviction. His petition for review on this issue is therefore denied. V. Fi n a l l y , Ramos contends he is not subject to removal because he is a national of the United States. A national of the United States is not subject to deportation f o r h a ving committed an aggravated felony. Whether a petitioner is a national is a purely legal issue that this court decides de novo , so long as ther e is no genuine issue of material fact regarding the p e t i t ioner’s nationality claim. There are two 4 2 

### ways in which a person may become a national: “by birth or by completing the naturalization process.” 4 3 

### Ramos does not allege or present evidence showin g t hat he is a national by birth or that he has completed the naturalization process. His only claim is that his service in the United States Army and Louisiana National Guard from 1987 to 1994, and the oath of allegiance he took in connection with that service, make him a national. This Court, like several of our sister circuits, has rejected the argument that military service and the taking of the oath of allegiance make

a person a national of the United States. Ramos gives us no reason to reach a 4 4 

### different conclusion here, and his petition for review on this issue is denied.

VI. For the foregoing reasons, we deny Ramos’s petitions for review.

8 U. S. C. § 1 252(b)( 5); Al wa n v
. As hcr oft , 388 F.3d 507 , 510 (5t h Cir

. 2004)

. 4 2
Om olo v
. Go nza le s , 452 F.3d 404 , 408- 09 ( 5th Cir. 200 6). 4 3
Wa r m i ng to n v
. Kei sl er , 254 Fed. App x. 287, 289 (5t h Cir. 2007) (p er cur iam ) 4 4 (unp ublis hed) (“ Ser vice in the a r m e d f orc es of the Unit ed Sta tes and tak ing the st andar d mi lita ry oath doe s not mak e a per so n a natio nal. ”) ; see a ls o D ra geni ce v. G onz al es , 470 F.3d 183, 188 -89 (4t h Cir

. 2006) ; Ma rque z-Al ma nza r v. INS , 418 F.3d 210, 218- 19 (2dCir

. 2005) ; Reye s-Al ca rezv
. As hcr oft , 363 F.3d937 , 940 (9t h Cir

. 2004)

. 

### 12 Case: 10-60925 Document: 00511946100 Page: 12 Date Filed: 08/06/2012