United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS November 4, 2004
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03 - 41318
______________________
OSWALDO CALDERON-TERRAZAS,
Petitioner-Appellant,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL;
AARON CABRERA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CV-145
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Before KING, Chief Judge, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM*:
Oswaldo Calderon-Terrazas appeals the district court’s denial
of his 28 U.S.C. § 2241 petition challenging his removal pursuant
to 8 U.S.C. § 1227(a)(2)(A)(iii) because he was convicted of sexual
assault of a child under Texas Penal Code § 22.011, an aggravated
felony. Calderon-Terrazas argues that sexual assault of a child
under Tex. Penal Code § 22.011 is not an “aggravated felony” under
8 U.S.C. §§ 1101(a)(43) and 1101(a)(48). Calderon-Terrazas argues
further that the “automatic” removal of a long-term lawful
*
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this opinion should not be published and is not precedent except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.
permanent resident with significant ties to the United States
violates substantive due process. In addition, Calderon-Terrazas
asserts that the BIA erred in deciding his case by summary
affirmance without opinion pursuant to 8 C.F.R. § 3.1(a)(7), now 8
C.F.R. § 1003.1(a)(7).
Contrary to the Government’s assertions, the district court
had jurisdiction over Calderon-Terrazas’s 28 U.S.C. § 2241 petition
because as an alien who is removable for having committed an
aggravated felony, he is precluded by 8 U.S.C. § 1252(a)(2)(C) from
seeking direct judicial review, and his petition raises questions
of law only. See INS v. St. Cyr, 533 U.S. 289, 314 (2001); Flores-
Garza v. INS, 328 F.3d 797, 802-04 (5th Cir. 2003).
Moreover, Calderon-Terrazas’s crime of “sexual assault of a
child” under Texas Penal Code § 22.011 qualifies as an aggravated
felony under 8 U.S.C. § 1101(a)(43)(A). 8 U.S.C. § 1101(a)(43)(A)
includes within the scope of the term “aggravated felony” the
enumerated crimes of “murder, rape, or sexual abuse of a minor.” In
U.S. v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000) this
Court held that in determining whether a specific crime constituted
“sexual abuse of a minor” for § 1101(a)(43)(A) purposes, the words
of the statute must be read according to “their ordinary
contemporary meaning.” Texas Penal Code § 22.011(a)(2)(A) says that
“a person commits [the offense of sexual assault] if the person
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intentionally or knowingly causes the penetration of the anus or
sexual organ of a child by any means”. This conduct clearly
constitutes “sexual abuse of a child”. Sexual abuse of a child is
an enumerated crime in 8 U.S.C. § 1101(a)(43) and therefore
expressly declared to be an “aggravated felony”.
Furthermore, Calderon-Terrazas’s deferred adjudication under
Texas law is a conviction under 8 U.S.C. § 1101(a)(48)(A) because
it involved an admission of guilt and limitations on his liberty.
See Moosa v. INS, 171 F.3d 994, 1005-06 (5th Cir. 1999).
The district court determined correctly that the statutes that
Calderon-Terrazas challenges as violating his substantive due
process rights are rationally related to a legitimate governmental
purpose. See Brennan v. Stewart, 834 F.2d 1248, 1257-58 (5th Cir.
1988); In re Longstaff, 716 F.2d 1439, 1442-43 & n.16 (5th Cir.
1983).
Also contrary to the Government’s assertions, the district
court had jurisdiction to review Calderon-Terrazas’s claim that the
BIA erred in using its summary affirmance procedure under 8 C.F.R.
§ 3.1(a)(7), now 8 C.F.R. § 1003.1 (a)(7). See Bravo v. Ashcroft,
341 F.3d 590, 592-93 & n.7 (5th Cir. 2003). The district court did
not err in finding that the BIA properly employed its summary
affirmance in this case. See Soadjede v. Ashcroft, 324 F.3d 830,
831-33 (5th Cir. 2003).
Accordingly, we conclude that Calderon-Terrazas was not denied
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due process of law and is not entitled to habeas relief.
AFFIRMED.
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