IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60848

Summary Calendar

JORGE CANTU, also known as Jorge Luis Cantu,

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. A039 297 824

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Jorge Cantu is a native and citizen of Mexico who was ordered removed 

from this country after an immigration judge (IJ) determined that his prior 

conviction for assault pursuant to Texas Penal Code § 22.01(a)(1) is a crime of 

violence (COV) under 18 U.S.C. § 16(b), thus rendering him removable 

pursuant to 8 U.S.C. § 1101(a)(43) as one who was convicted of an aggravated 

felony. Now, Cantu petitions this court for review of the order in which the 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 25, 2014

Lyle W. Cayce

Clerk

 

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No. 13-60848

Board of Immigration Appeals (BIA) dismissed his appeal from the IJ’s 

decision. 

We do not have jurisdiction to consider challenges to “any final order of 

removal against an alien who is removable by reason of having committed 

certain designated criminal offenses, including an aggravated felony under . . . 

§ 1101(a)(43).” Larin-Ulloa v. Gonzales, 462 F.3d 456, 460 (5th Cir. 2006); see

8 U.S.C. § 1252(a)(2)(C). Nonetheless, we have jurisdiction to consider the 

issue whether Cantu’s prior conviction is in fact an aggravated felony for 

immigration purposes. See id.

In determining whether a prior conviction falls within a statutory 

provision of the Immigration and Nationality Act (INA), we accord substantial 

deference to the BIA’s interpretation of the INA and the definitions of phrases 

within it. Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir. 2005). We then 

review de novo whether the particular statute governing a prior conviction falls 

within the relevant INA definition of an aggravated felony, rendering an alien 

removable. Id.

Our review of the record shows no error in the disputed order. Insofar 

as Cantu argues that he does not have a COV conviction because one may 

commit a § 22.01 offense through inconsequential physical contact, this 

argument misses the mark. An offense falls under § 16(b) if the risk of 

substantial force is likely to arise in a given case. Perez-Munoz v. Keisler, 507 

F.3d 357, 362-64 (5th Cir. 2007). “Being able to imagine unusual ways the 

crime could be committed without the use of physical force does not prevent it 

from qualifying as a crime of violence under § 16(b).” Perez-Munoz, 507 F.3d 

at 364; cf. Zaidi v. Ashcroft, 374 F.3d 357, 360-61 (5th Cir. 2004). This 

argument is unavailing. 

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No. 13-60848

Next, Cantu contends that the analysis used in United States v. FierroReyna, 466 F.3d 324 (5th Cir. 2006) should be used to address the issue 

whether his § 22.01 conviction is a COV. This argument is unavailing. FierroReyna is materially distinguishable from the instant case insofar as it did not 

address the question whether a § 22.01(a)(1) offense is a § 16(b) COV because 

it involves a substantial risk of physical force. Cantu’s argument that his prior 

offense is not a crime involving moral turpitude is misplaced because the BIA 

did not consider this issue. The petition for review is DISMISSED for want of 

jurisdiction. 

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 Case: 13-60848 Document: 00512782323 Page: 3 Date Filed: 09/25/2014