Eriberto Sotelo-Soto v. Eric Holder, Jr.
UNPUBLISHED OPINION FILED. [11-60340 Affirmed ] Judge: FPB , Judge: CES , Judge: SAH Mandate pull date is 04/20/2012 [11-60340]
Date Filed: 02/28/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
February 28, 2012
Lyle W. Cayce
ERIBERTO SOTELO-SOTO, also known as Eriberto Soto Sotelo,
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A043 798 420
Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
Eriberto Sotelo-Soto, a native and citizen of Mexico, seeks review of the
Board of Immigration Appeals (BIA) dismissal of his appeal of an order of
removal based on his prior conviction for evading arrest or detention with a
motor vehicle under Texas Penal Code § 38.04. See 8 U.S.C. § 1227(a)(2)(A)(iii).
Because Sotelo-Soto has raised a question of law for our review, we have
jurisdiction in this case pursuant to 8 U.S.C. § 1227(a)(2)(D). See Martinez v.
Mukasey, 519 F.3d 532, 538 (5th Cir. 2008) (stating that whether a prior
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 02/28/2012
conviction is an aggravated felony is a question of law). Sotelo-Soto argues that
his conviction does not constitute an aggravated felony under Section 1101(a)(43)
of the Immigration and Nationality Act because the Texas statute applies to
many non-forceful types of conduct, does not require intent for its violation, and
does not involve purposeful, violent, and aggressive conduct.
Section 1101(a)(43) defines “aggravated felony” as including “a crime of
violence (as defined in section 16 of Title 18, but not including a purely political
offense) for which the term of imprisonment at least one year.” 8 U.S.C. §
1101(a)(43)(F) (2006). In United States v. Sanchez-Ledezma, 630 F.3d 447, 451
(5th Cir.), cert. denied, 131 S. Ct. 3024 (2011), this court held that a Texas
conviction for evading arrest or detention with a motor vehicle under § 38.04
qualifies as a crime of violence under 18 U.S.C. § 16(b). Because the offense
qualifies as a crime of violence and, as he does not dispute, Sotelo-Soto was
sentenced to a term of two years of imprisonment for the offense, the BIA did not
err in its conclusions that the offense qualifies as an aggravated felony and that
Sotelo-Soto is removable as a result. See Sanchez-Ledezma, 630 F.3d at 451; 8
U.S.C. § 1101(a)(43)(F) (defining the term aggravated felony to include a crime
of violence as defined in § 16(b)); § 1227(a)(2)(A)(iii). The petition for review is
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