### 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 th e

* Pursuant to 5 TH C IR

. R. 47.5 , the court has deter mined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 25, 2014 Lyle W. Cayce Clerk Case: 13-60848 Document: 00512782323 Page: 1 Date Filed: 09/25/2014No. 13

- 60848
Board of Immigration Appeals (BIA) dismissed his appeal from th e 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 convicti on 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

argum ent misses the mark

. A n offense f all s under § 16(b) i f the risk of substantial force is li kely 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 witho ut 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

- 6 1 (5th Cir. 2004). This argument is unavailing.

2 Case: 13-60848 Document: 00512782323 Page: 2 Date Filed: 09/25/2014No. 13

- 60848
Next, Cantu contends that the analysis used in United States v. Fierro

Reyna , 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

. Fierro

Reyna 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 cri me involving moral turpitude is misplaced because the BIA did not consider this issue. The petition for review is DISMISSED for want of jurisdiction

.

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