* 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should not be published and is not precedent except under the limited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. 07-60621

RUBEN DARIO SOLORZANO-MORENO,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL OFTHE UNITED STATES,

Respondent.

On Petition for Review of an Order

of the Board of Immigration Appeals

BIA No. A75 294 645

Before DAVIS, CLEMENT, and ELROD, Circuit Judges. 

PER CURIAM:*

The Immigration and Naturalization Service initiated removal proceedings

against Petitioner Ruben Dario Solorzano-Moreno. An immigration judge found

Solorzano removable, denied his applications for asylum, withholding of removal,

and relief under the Convention Against Torture, and ordered him removed.

The Board of Immigration Appeals (“BIA”) dismissed Solorzano’s appeal of the

immigration judge’s order. We deny Solorzano’s petition for review in part and

dismiss it in part for lack of jurisdiction. 

United States Court of Appeals

Fifth Circuit

F I L E D

October 10, 2008

Charles R. Fulbruge III

Clerk
No. 07-60621

1 We substitute the victim’s initials to preserve her privacy. 

2 Deferred adjudication is the equivalent of a conviction for purposes of

immigration law, Moosa v. I.N.S., 171 F.3d 994, 1006 (5th Cir. 1999), and

Solorzano does not argue to the contrary. 

2

I. Facts and Proceedings

Solorzano, a native of Colombia, entered the United States in June 1995

and became a lawful permanent residentin August 1999. Less than four months

later, in December 1999, he was indicted for sexual assaultin violation of section

22.011 of the Texas Penal Code. The indictment laid the following charge: 

RUBEN SOLORZANO, defendant, . . . on or about September 9,

1999, in Nueces County, Texas, did then and there intentionally and

knowingly cause the penetration of the female sexual organ of

[M.R.]1 by Ruben D. Solorzano’s finger, without the consent of [M.R.]

and the actor is a mental health service provider, who caused

[M.R.], who is a patient of the defendant to submit and participate

by exploiting [M.R.]’s emotional dependency on the defendant . . . .

Solorzano admitted providing services to M.R. intended to help people “having

problems in love.” Specifically, he acknowledged directing M.R. in a “cleansing

ritual” that involved the use of an egg “to cleanse through the outside of the

body” and explained that “what the egg was doing was retaining all those

negative vibes the body had.” Despite denying that he had ever touched M.R.,

Solorzano pleaded nolo contendere and was placed on deferred adjudication.2

The Immigration and Naturalization Service initiated removal proceedings

against Solorzano. An immigration judge determined (1) that Solorzano had

committed both an aggravated felony and a crime involving moralturpitude and

was therefore removable under 8 U.S.C. § 1227(a)(2)(A) (i) and (iii); (2) that

Solorzano was ineligible for voluntary departure under section 1229c because he

had been convicted of an aggravated felony; (3) that Solorzano was ineligible for

withholding of removal under section 1231(b)(3) because he had been convicted

of a “particularly serious” crime; and (4) that Solorzano was not eligible for a
No. 07-60621

3

deferral of removal under the Convention Against Torture. Solorzano appealed

the immigration judge’s denial of his applications for asylum, withholding of

removal, and relief under the Convention Against Torture, but not the judge’s

determination that he had committed a crime involving moral turpitude and was

therefore removable. 

The Board of Immigration Appeals dismissed the appeal, finding that the

immigration judge had properly considered “the nature of the conviction, the

circumstances and underlying facts of the conviction, the type of sentence, and

whether the respondent poses a danger to the community” in determining that

Solorzano had been convicted of a “particularly serious crime. The BIA declined

to address whether Solorzano’s crime also constituted an “aggravated felony”

within the meaning of section 1101(a)(43)(A), as resolution of the issue was

unnecessary given the determination that Solorzano had committed a

“particularly serious” crime. Solorzano subsequently filed a petition seeking

relief from this court. 

II. Standard of Review

We review de novo questions relating to our jurisdiction to consider

challenges to a final order of the BIA. Balogun v. Ashcroft, 270 F.3d 274, 277

(5th Cir. 2001). The same standard of review applies to constitutional claims

and questions of law. Mai v. Gonzales, 473 F.3d 162, 164 (5th Cir. 2006). 

III. Discussion

As the government notes in its brief, Solorzano’s petition to this court does

not challenge (1) the BIA’s determination that he has been convicted of a crime

involving moral turpitude and is therefore removable under section

1227(a)(2)(A)(i); (2) the BIA’s finding that he is ineligible for voluntary

departure; or (3) the BIA’s denial of his application for protection under the

Convention Against Torture. Nor does Solorzano challenge the denial of his

asylum application. Solorzano instead argues (1) that he has not been convicted

of an aggravated felony and is therefore not removable under section
No. 07-60621

3 Notwithstanding the jurisdictional bar discussed below, we have

jurisdiction to deny this challenge because “the question of whether an offense

constitutes an aggravated felony is a purely legal one.” Patel v. Mukasey, 526

F.3d 800, 802 (5th Cir. 2008). 

4

1227(a)(2)(A)(iii); and (2) that he did not commit a “particularly serious” crime

within the meaning of section 1231(b)(3)(B)(ii) and is therefore eligible for

withholding of removal. We need not consider the first argument, as an

alternative, independent ground exists for the immigration judge’s

determination that Solorzano is removable, and we are without jurisdiction to

consider the second argument. 

The immigration judge determined that Solorzano was removable for two

independent reasons: his crime (1) was an aggravated felony, and (2) involved

moral turpitude. Either of these findings is alone sufficient to support the

judge’s determination that Solorzano was removable. See 8 U.S.C.

§ 1227(a)(2)(A). Solorzano challenges only the finding that his crime was an

aggravated felony; he does not address the immigration judge’s finding that it

involved moral turpitude. Because the immigration judge’s determination that

Solorzano was removable under section 1227(a)(2)(A) would stand even if we

were to decide that his crime was not an aggravated felony, we need not address

the issue. See, e.g., Capital Concepts Props. 85-1 v. Mut. First, Inc., 35 F.3d 170,

176 (5th Cir. 1994).3

With respect to Solorzano’s challenge to the denial of his application for

withholding of removal, the immigration judge’s uncontroverted determination

that Solorzano was placed on deferred adjudication for a crime involving moral

turpitude limits our jurisdiction to constitutional claims and questions of law.

Section 1252(a)(2)(C) provides that “[n]otwithstanding any other provision of law

(statutory or nonstatutory) . . . no court shall have jurisdiction to review any

final order of removal against an alien who is removable by reason of having

committed a criminal offense covered in section 1182(a)(2) . . . .” Among the
No. 07-60621

4 Section 1182(a)(2)(A)(ii) contains certain exceptions inapplicable to

Solorzano. 

5 We need not address the government’s alternative jurisdictional

argument that section 1252(a)(2)(B) precludes our review of the immigration

judge’s finding under section 1231(b)(3)that Solorzano’s crime was “particularly

serious.” This argument, which posits that whether an alien has been convicted

of a “particularly serious” crime is a matter of “discretion” within the meaning

of section 1252(a)(2)(B), is the subject of a circuit split. Compare, e.g.,Villegas

5

criminal offenses covered in section 1182(a)(2) are “crime[s] involving moral

turpitude.”4 The only exception to section 1252(a)(2)(C)’s jurisdictional bar is

that the section does not “preclud[e] review of constitutional claims or questions

of law.” 8 U.S.C. § 1252(a)(2)(D). Thus, in the present case we have jurisdiction

to consider only constitutional claims or questions of law raised in Solorzano’s

petition. See, e.g., Balogun, 270 F.3d at 279 (dismissing petition for review ofthe

BIA’s dismissal of application for protection under the Convention Against

Torture); see also Almaghzar v. Gonzales, 457 F.3d 915, 923 (9th Cir. 2006)

(holding that the court lacked jurisdiction to review whether petitioner’s felony

convictions “constituted particularly serious crimes” where petitioner was

“removable by reason of having committed a criminal offense covered in section

1182(a)(2)”). 

Solorzano, however, raises no constitutional claims or questions of law

relating to the denial of his application for withholding of removal. Instead, he

argues that the immigration judge placed too much “focus” on the likelihood of

future serious misconduct and “relied on hysteria and emotion rather than

conducting a dispassionate evaluation of [Solorzano’s] offense and [its]

aftereffects.” These claims, which amount to an argument that the immigration

judge “abused [her] discretion in weighing the multiple desiderata made relevant

by the [BIA’s] definition of a ‘particularly serious crime,’” do not present

questions of law and therefore are not reviewable under section 1252(a)(2)(D).

See Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. 2006).5
No. 07-60621

v. Mukasey, 523 F.3d 984, 987 (9th Cir. 2008) (holding that whether a crime is

“particularly serious”is a “determination [] committed by statute to the Attorney

General’s discretion, so this courtlacks jurisdiction to review it”) with Nethagani

v. Mukasey, 532 F.3d 150, 154–55 (2d Cir. 2008) (reaching the contrary

conclusion). 

6

IV. Conclusion

For the reasons set forth above, we DENY Solorzano’s challenge to the

immigration judge’s determination that he is removable under section

1227(a)(2)(A) and DISMISS for lack of jurisdiction Solorzano’s challenge to the

denial of his application for withholding of removal.