United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 30, 2006
Charles R. Fulbruge III
Clerk
No. 05-61021
Summary Calendar
LUIS ALVARADO-NARVAEZ,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A11 394 003
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Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Luis Alvarado-Narvaez petitions for review of an order of
the Board of Immigration Appeals (BIA). Alvarado-Narvaez argues
that the BIA erred by holding, contrary to the conclusion of the
immigration judge (IJ), that his conviction under TEX. PENAL CODE
§ 21.11(a)(1) was an aggravated felony. This court lacks
jurisdiction to consider petitions for review filed by aliens who
are ordered removed based on the commission of an aggravated
felony. See U.S.C. § 1252(a)(2)(C). Nevertheless, this court
does retain jurisdiction to review the issue whether Alvarado-
*
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this opinion should not be published and is not precedent except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.
No. 05-61021
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Narvaez’s conviction constitutes an aggravated felony for
immigration purposes. Omari v. Gonzales, 419 F.3d 303, 306 (5th
Cir. 2005).
Alvarado-Narvaez has not shown that the BIA erred by finding
that his conviction for indecent contact with a minor, under TEX.
PENAL CODE § 21.11(a)(1), constitutes “sexual abuse of a minor,”
under 8 U.S.C. § 1101(a)(43)(A). In United States v. Zavala-
Sustaita, 214 F.3d 601 (5th Cir. 2000), this court found that the
lesser offense of indecent exposure with a minor, under TEX. PENAL
CODE § 21.11(a)(2), constituted “sexual abuse of a minor.” Id.
at 604. We went on to state, “[h]ad [the petitioner]’s prior
offenses been § 21.11(a)(1) offenses involving physical contact,
we would clearly treat them as aggravated felonies.” Id. at 604
n. 1. Consequently, Alvarado-Narvaez’s petition for review is
DISMISSED for want of jurisdiction to the extent that he seeks
review of the BIA’s determination that he should be removed due
to his commission of an aggravated felony.
Alvarado-Narvaez also argues that the BIA acted ultra vires
by ordering him removed in the first instance. We have
jurisdiction to consider this issue. See James v. Gonzales, 464
F.3d 505, 512-14 (5th Cir. 2006). Alvarado-Narvaez is correct
insofar as he argues that the BIA should not have issued a
removal order but should have remanded his case to the IJ for
further consideration. See id. Accordingly, to the extent that
he challenges the BIA’s authority to issue an order of removal
No. 05-61021
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against him, his petition for review is GRANTED, and the case is
REMANDED to the BIA for further proceedings consistent with this
opinion. Because Alvarado-Narvaez has prevailed on this
argument, there is no need to consider his remaining challenges
to the order of removal.