United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2004
_______________________ Charles R. Fulbruge III
Clerk
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
Raza Zaidi is a 27-year-old native and citizen 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 a
suspended sentence of two years for each count, to run concur-
rently. 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. See 8 U.S.C. § 1252(a)(2)(C) (2000) (“Notwith-
1
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 administrative, service, and enforcement functions were
transferred 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
standing any other provision of law, no court shall have juris-
diction to review any final order of removal against an alien who
is removable by reason of having committed a criminal offense
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 (5th Cir. 2001) (“Congress has
specifically commanded in 8 U.S.C. § 1252(a)(2)(C) that no court
has jurisdiction to review deportation orders for aliens who are
removable because they were convicted of aggravated felonies.”).
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 jurisdic-
tional facts. Lopez-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. Smalley 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
for sexual battery under Oklahoma law constitutes an aggravated
3
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 includes a variety of offenses. See
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 removable for committing an
aggravated felony, this court has no jurisdiction, irrespective of
whether the [government] originally sought removal for that
reason.” Lopez-Elias, 209 F.3d at 793 (emphasis added).2 In
2
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 removed under the
expedited procedure contained in 8 U.S.C. § 1228(b). This is incorrect. As we
note above, any dispute that relates to the jurisdiction of this court may be
addressed before dismissal under the jurisdiction-stripping provision of
§ 1252(a)(2)(C). Nehme, 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 cannot
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. Bovkun 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
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
defined by section 101(a)(43) of the [Immigration and
Naturalization] Act, 8 U.S.C. [§] 1101(a)(43) . . . .” 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) includes “a crime of violence (as defined in
section 16 of title 18, United States Code, 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.
battery 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
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 convic-
tion, 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 consent of
that other person . . . .
OKLA. STAT. ANN. TIT. 21, § 1123(B) (WEST 2002).3
Zaidi’s principal argument 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 “crime
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 more than five (5)
years.” OKLA. STAT. ANN. TIT. 21, § 1123 (WEST 2002).
6
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 definitions of a crime of violence
under 18 U.S.C. § 16 because the Oklahoma offense of sexual battery
has “as an 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 may 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. See United States v. Rowland, 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. Id. at 1198. In this case we
confront a different 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.
4
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 Rowland, the Tenth Circuit does, however,
discuss the risk of physical force being used in such cases. See 357 F.3d at
1197. As discussed infra, we agree with the Tenth Circuit that sexual battery
inherently carries with it a risk that physical force will be used in the
commission of the offense.
7
In Rowland, the Tenth Circuit noted that a conviction
under 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.” Id. at 1197 (quoting OKLA. STAT. ANN. TIT. 21,
§ 642). Further, “[b]ecause the statute at issue here presupposes
a lack of consent, it necessarily carries with it a risk of
physical force.” Id. By analogy, we believe that the risk that
physical force will be used to complete the offense of sexual
battery is substantial. See also Sutherland v. Reno, 228 F.3d 171,
176 (2nd Cir. 2000) (indecent assault and battery under Massa-
chusetts 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 Sixth 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
perpetrator to resort to actual physical restraint.” See United
States v. Mack, 53 F.3d 126, 128 (6th Cir. 1995). In all such
cases, “the non-consent of the victim is the touchstone for
determining” whether a given offense involves a substantial risk
8
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.
5
Because we find that Zaidi’s conviction constitutes a crime of
violence under § 16(b), we decline to address whether the offense qualifies as
a crime of violence under § 16(a).
9