United States Court of Appeals

Fifth Circuit



## FILED

June 21, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

NO. 03-60288

_______________________

RAZA AKHTAR ZAIDI,

Petitioner,

versus

JOHN ASHCROFT,

United States Attorney General,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals

Before JOLLY, DAVIS, and JONES, Circuit Judges.

PER CURIAM:

This appeal raises the question whether a conviction for

sexual battery under Oklahoma law constitutes a “crime of

violence,” as defined in 18 U.S.C. § 16(b) and incorporated in the

immigration laws, sufficient to deport the petitioner. Because we

hold that it does, we lack jurisdiction and dismiss the petition.

I. BACKGROUND

R aza Zaidi is a 27-year-old native and citize n of

Pakistan who was admitted into the United States as a non-immigrant

student in August 2000. In June 2002, Zaidi pled nolo contendere

to two counts of sexual battery in Oklahoma. Zaidi was given a1 All references to the Department of Homeland Security or the Bureau

of Immigration and Customs Enforcement (“BICE”) refer to the agency formerly

known as the Immigration and Naturalization Service (“INS”). As of March 1,

2003, the INS’s adminis trative, service, and enforcement functions were

transferre d from the Department of Justice to the new Department of Homeland

Security. The Bureau of Immigration and Customs Enforcement in the Department

of Homeland Security assumed the INS’s detention, removal, enforcement and

investigative functions.

2 suspended sentence of two years for each count, to run concurrently. The sexual battery charges arose from a night of drinking

during which Zaidi touched two women inappropriately through their

clothing while the women were either passed out or partially awake

in a dorm room at Southeast Oklahoma State University.

A few months later, Zaidi appeared at the Houston office

of the Department of Homeland Security (“DHS”) 1 to comply with the

registration obligations put in place for certain non-U.S. citizens

in the aftermath of September 11, 2001. Upon processing, Zaidi was

issued a Notice of Intent to Issue a Final Administrative Removal

Order based on his prior conviction. On March 6, 2003, a Final

Administrative Removal Order was served upon Zaidi, ordering him to

be removed to Pakistan. Zaidi now petitions this court for review

of the removal order.

II. DISCUSSION

A. Standard of Review

The key question before the court is whether Zaidi’s

conviction for sexual battery constitutes an aggravated felony such

that this court is deprived of jurisdiction to review the final

removal order. S ee 8 U.S.C. § 1252(a)(2)(C) (2000) (“Notwith-3

standing any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who

i s removable by reason of having committed a criminal offe nse

covered in section

. . . 1227(a)(2)(A)(iii)

. . . .”); 8 U.S.C.

§ 1227(a)(2)(A)(iii) (2000) (“Any alien who is convicted of an

aggravated felony at any time after admission is deportable.”);

Nehme v. INS

, 252 F.3d 415, 420 (5t h Cir. 2001) (“Congress has

specifically commanded in 8 U.S.C. § 1252(a)(2)(C) that no court

has jurisdictio n to review deportation orders for aliens who are

removable because they were convicted of aggravated felon ies.”).

This court reviews questions of jurisdiction de novo. Nehme , 252

F.3d at 420.

B. “Sexual Battery” as a “Crime of Violence”

Under the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546

(“IIRIRA”), this court retains jurisdiction to review jurisdictional fac ts. L opez-Elias v. Reno

, 209 F.3d 788, 791 (5th Cir.

2000). Specifically, 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. S malley v.

Ashcroft

, 354 F.3d 332, 335 (5th Cir. 2003) (citing Nehme

, 252 F.3d

at 420).

Thus, this court must consider whether Zaidi’s conviction

f or sexual battery under Oklahoma law constitutes an aggrav ated2 In his reply brief before this court, Zaidi argues that Lopez-Elias

should not apply to his petition because in that case, the petitioner was removed

under the standard removal process, whereas here, Zaidi was remov ed under the

expedited procedure contained in 8 U.S.C. § 1228(b). This is incorrect. As we

n ote above, any dispute that relates to the jurisdiction of this court may be

addressed before dismissal under the jurisdiction-stripping pr ovision of

§ 1252(a)(2)(C). N ehme

, 252 F.3d at 420. This is true regardless of whether the

underlying removal proceeding was expedited. Once this court has determined that

an alien is, in fact, removable for having committed an aggravated felony, this

court is stripped of jurisdiction. Id. at 433.

Zaidi’s only claim here is that he was not given reasonable notice

of the charges against him because the INS initially charged him with

removability under the wrong provision of § 1101(a)(43). We agree with the Third

Circuit’s view that an “erroneous citation in the order of removal c annot

surmount the jurisdictional restriction in INA § 242(a)(2)(C), 8 U.S.C.

§ 1252(a)(2)(C),” and note that our court’s approach in Lopez-Elias is consistent

with this view. B ovkun v. Ashcroft

, 283 F.3d 166, 169 (3rd Cir. 2002) (reviewing

a removal order issued pursuant to expedited procedure contained in § 1228(b)).

Here, the error was not even in the ultimate order of removal, but only in the

initial charging papers. Zaidi does not dispute that he was convicted of sexual

4 felony under 8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated

felony” is defined for the purposes of the immigration statutes in

8 U.S.C. § 1101(a)(43) and inclu des a variety of offenses. S ee

8 U.S.C. § 1101(a)(43) (2000). Zaidi first argues that he cannot

be removed from the United States because the original federal

charging documents indicated that he had committed a specified

aggravated felony within the definition contained in

§ 1101(a)(43)(A), which encompasses “murder, rape, or sexual abuse

of a minor.” See 8 U.S.C. § 1101(a)(43)(A) (2000).

This argument is without merit. This court has held that

“[w]hat the [government] originally charged is of no consequence;

so long as the alien in fact is rem ovable for committing an

aggravated felony, this court has no jurisdiction

, irrespective of

whether the [government] originally sought removal for that

reason.” L opez-Elias

, 209 F.3d at 793 (emphasis added). 2 Inbattery under Oklahoma law, nor does he argue that he has been deprived of the

opportunity to contest the INS’s determination that he is removable based on this

conviction. Zaidi has presented no evidence to this court that the improper

citation contained in the initial notice prejudiced him during the expedited

removal proceeding. In addition, review in this court provides Zaidi with the

opportunity to argue that his conviction does not render him removable under the

immigration laws. As a result, we need only determine whether Zaidi is properly

removable, and if so, we lack jurisdiction over the petition under

§ 1252(a)(2)(C).

5 addition, in this case, the final order requiring Zaidi to be

deported contains a factual finding made by the deporting officer

that Zaidi had “a final conviction for an aggravated felony as

def ined by section 101(a)(43) of the [Immigration and

Naturalization] Act, 8 U.S.C. [§] 1101(a)(4 3) . . . .” This

finding does not specify which subsection of § 1101(a)(43) Zaidi

was found to have violated. Thus, the court must determine whether

Zaidi’s prior conviction falls within any of the specific

definitions contained in § 1103(a)(43).

The definition of aggravated felony contained in 8 U.S.C.

§ 1103(a)(43) inc ludes “a crime of violence (as defined in

section 16 of title 18, United States Cod e, but not including a

purely political offense) for which the term of imprisonment [is]

at least one year.” 8 U.S.C. § 1101(a)(43)(F) (2000). Title 18 of

the U.S. Code, in turn, defines a “crime of violence” as:

(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

(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.3 The statute also provided that “[a]ny person convicted of any

violation of this subsection shall be deemed guilty of a felony and shall be

punished by imprisonment in the State Penitentiary for not m o re than five (5)

years.” O KLA

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. T IT

. 21, § 1123 (W EST 2002).

6 18 U.S.C. § 16 (2000).

To determine whether an alien has committed an aggravated

felony that renders him deportable, courts apply the categorical

approach and look primarily to the text of the statute violated.

Lopez-Elias

, 209 F.3d at 791; see also United States v. Allen

, 282

F.3d 339, 343 (5th Cir. 2002); United States v. Landeros-Gonzalez

,

262 F.3d 424, 426 (5th Cir. 2001). At the time of Zaidi’s conviction, Oklahoma law provided that:

No person shall commit sexual battery on any other

person. “Sexual battery” shall mean the intentional

touching, mauling or feeling of the body or private parts

of any person sixteen (16) years of age or older, in a

lewd and lascivious manner and without the cons ent of

that other person . . . .

O KLA

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. 21, § 1123(B) (W EST 2002). 3

Zaidi’s principal ar gument is that this statute may be

violated in a variety of ways, including through the intentional,

but “nonviolent,” physical touching of another, so long as the

touching is lewd and lascivious. Specifically, Zaidi points to the

facts of his case, which, he suggests, indicate that while he

inappropriately touched the women without their consent, he did not

use any “destructive or violent force” in doing so. As a result,

Zaidi argues that while his conduct was criminal and deserving of

punishment under Oklahoma law, it should not be considered a “crime4 See

, e.g.

, United States v. Chapa-Garza

, 243 F.3d 921, 925 (5th Cir.

2001) (contrasting conduct that involves “a serious risk of physical injury” with

conduct that presents “a substantial risk that the defendant will use physical

force against another’s person”). In R owland

, the Tenth Circuit does, however,

discuss the risk of physical force being used i n such cases. S ee 357 F.3d at

1197. As discussed infra , we agree with the Tenth Circuit that sexual battery

i nherently carries with it a risk that physical force will be used in the

commission of the offense.

7 of violence” sufficient to serve as a predicate offense for his

deportation. The government, for its part, argues that Zaidi’s

conviction comes within both def initions of a crime of violence

under 18 U.S.C. § 16 because the Oklahoma offense of sexual battery

has “as a n element the use . . . of physical force against the

person

. . . of another” and because a violation of the statute, by

its nature, also presents “a substantial risk that physical force

against the person

. . . of another m ay be used in the course of

committing the offense.”

The Tenth Circuit recently held that the Oklahoma sexual

battery statute may serve as a predicate offense for the crime of

violence enhancement contained in Section 4B1.2 of the United

States Sentencing Guidelines. S ee United States v. Row land , 357

F.3d 1193, 1195-98 (10th Cir. 2004). In that case, the Tenth

Circuit held that sexual battery, by its nature, presents a serious

potential risk of injury to another. I d. at 1198. In this case we

confront a differ ent standard — whether the offense of sexual

battery under Oklahoma law creates a substantial risk that physical

force may be used against another. 4 We have little difficulty in

concluding that it does.8 In Rowland , the Tenth Circuit noted that a conviction

u nder the Oklahoma statute presupposes “the intentional sexual

touching of another with a particular mental state and without

consent” and held that such a touching “represents a particular

subset of battery.” I d. at 1197 (quoting O KLA

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. 21,

§ 642). Further, “[b]ecause the statute at issue here presupposes

a lack of consent, it necessarily ca rries with it a risk of

physical force.” I d. By analogy, we believe that the risk that

physical force will be used to complete the offense of sexual

battery is substantial. S ee also Sutherland v. Reno

, 228 F.3d 171,

176 (2nd Cir. 2000) (indecent assault and battery under Massachusett s law qualified as a crime of violence because “any

violation of [the Massachusetts statute], by its nature, presents

a substantial risk that force may be used to overcome the victim’s

lack of consent and accomplish the indecent touching”) (emphasis in

original). In holding that sexual battery through deception under

Ohio law is a crime of violence, the Sixt h Circuit expressed a

similar view, noting that such an offense “carries with it the

ever- present possibility that the victim may figure out what's

really going on and decide to resist, in turn requiring the

perpetr ator to resort to actual physical restraint.” S ee United

States v. Mac k , 53 F.3d 126, 128 (6th Cir. 1995). In all such

cases, “the non-consent of the victim is the touchstone for

deter mining” whether a given offense involves a substantial risk5 Because we find that Zaidi’s conviction constitutes a cri m e of

violence under § 16(b), we decline to address whether the offense qualifies as

a crime of violence under § 16(a).

9 that physical force may be used in the commission of the offense.

Sutherland , 228 F.3d at 177.

Because the Oklahoma offense of sexual battery is a crime

of violence under 18 U.S.C. § 16(b), Zaidi’s offense qualifies as

a crime of violence within the meaning of 8 U.S.C. § 1103(a)(43)

and an aggravated felony under 8 U.S.C. § 1227(a)(2)( A)(iii). 5

Under the last-cited statute, this court lacks jurisdiction to

review the final order of removal issued by the Department of

Homeland Security. See 8 U.S.C. § 1252(a)(2)(C) (2000).

The petition is DISMISSED for lack of jurisdiction.