Esau Rodriguez v. Eric Holder, Jr.
705 F.3d 207
5th Cir.2013Background
- Rodriguez, a Mexican national, pled guilty in 2002 to a Texas offense under § 22.011 and received deferred adjudication;
- In 2010, he received a Notice to Appear alleging removability for an aggravated felony based on an attempted sexual assault conviction;
- An IJ held Rodriguez removable, finding the Texas § 22.011(a)(1) offense is a crime of violence under 18 U.S.C. § 16(b);
- BIA affirmed, concluding the record showed an aggravated felony due to a sentence over a year;
- This court reviews jurisdiction de novo and applies the categorical and modified categorical approaches to determine if the conviction qualifies as an aggravated felony;
- Texas § 22.011(a)(1) criminalizes intentional sexual conduct without consent, with additional subsections (b)(9)/(b)(10) alleging exploitation of emotional dependency; the majority held those provisions are not categorically crimes of violence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 22.011(a)(1) is categorically a crime of violence under § 16(b) | Rodriguez (plaintiff) asserts all § 22.011(a)(1) acts involve deliberate force; | Rodriguez (defendant) contends some acts (b)(9)/(b)(10) do not inherently involve substantial risk of force | Yes; all § 22.011(a)(1) acts involve intentional use of force, thus are crimes of violence. |
| Whether the record proves the conviction fell under an aggravated felony via the modified categorical approach | Record insufficient to show necessarily aggravated felony under § 16 | Record could establish the particular subsection under which convicted | No; under the majority view, the record insufficiently ties to an aggravated felony under the modified approach. |
| Whether the court has jurisdiction to review a removal order based on aggravated felony status | Jurisprudence allows review of jurisdictional facts; functionally review for correctness | Aggravated felony removability removes jurisdiction for review | The court has jurisdiction to review jurisdictional facts de novo. |
Key Cases Cited
- Zaidi v. Ashcroft, 374 F.3d 357 (5th Cir. 2004) (analyzed whether certain statutes are crimes of violence under § 16(b))
- Leocal v. Ashcroft, 543 U.S. 1 (U.S. Supreme Court 2004) (DUI not a crime of violence under § 16(b) for purposes of removal)
- Taylor v. United States, 495 U.S. 575 (Supreme Court 1990) (categorical approach for deciding if an offense is an aggravated felony)
- Begay v. United States, 553 U.S. 137 (Supreme Court 2008) (limits on counting certain offenses as violent under § 16 for non-qualifying analogous crimes)
- Wynn v. United States, 579 F.3d 567 (6th Cir. 2009) (treats offenses similarly to Begay and Leocal in modifying the approach)
- Omari v. Gonzales, 419 F.3d 303 (5th Cir. 2005) (discusses application of the modified categorical approach)
- Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. 2006) (application of categorical/record evidence in aggravated felony determinations)