207 F.3d 869 (7th Cir. 2000), 99-3310, Solorzano-Patlan v INS

Docket Nº:99-3310
Citation:207 F.3d 869
Party Name:Mario SOLORZANO-PATLAN, PETITIONER, V. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.
Case Date:March 10, 2000
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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207 F.3d 869 (7th Cir. 2000)

Mario SOLORZANO-PATLAN, PETITIONER,

V.

IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.

No. 99-3310

United States Court of Appeals, Seventh Circuit

March 10, 2000

Argued November 9, 1999

Petition for Review of an Order of the Board of Immigration Appeals No. A90 689 643

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Lisa J. Palumbo (argued), Legal Assistance Foundation of Chicago, Chicago, IL, for petitioner.

Joan E. Smiley (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, for respondent.

Before Coffey, Manion and Evans, Circuit Judges.

Coffey, Circuit Judge.

Mario Solorzano-Patlan challenges the Board of Immigration Appeals' (BIA) decision that he was removable from the United States as an "aggravated felon" because his Illinois burglary conviction was classified as a "burglary offense," as well as a "crime of violence," for which the term of imprisonment is at least one year. See 8 U.S.C. sec.sec. 1101(a)(43)(F) & (G). Because we conclude that the BIA's interpretation of sections 1101(a)(43)(F) and (G) was erroneous, we GRANT the petition for review, VACATE the BIA's deportation order, and REMAND this case for further proceedings consistent with this opinion.

I. BACKGROUND

On March 16, 1995, Solorzano-Patlan, a lawful permanent resident of the United States with no prior criminal record,1 pled guilty to an information in Lake County, Illinois, charging that "without authority, [he] knowingly entered a 1994 Ford Explorer belonging to [another] with the intent to commit therein a theft."2 (emphasis added). That same day, Solorzano-Patlan was sentenced to sixty days' imprisonment and twenty-four months of supervised probation.3

On March 31, 1998, the Illinois court revoked Solorzano-Patlan's probation because he failed to complete his community service or pay his fines, and sentenced him to three years' imprisonment; at the same time, recommending that Solorzano-Patlan be enrolled in the Illinois "impact incarceration" program, commonly referred to as "boot camp." This recommendation was denied because the Immigration and Naturalization Service (INS) had placed a detainer on Solorzano-Patlan making him ineligible for the "impact incarceration" program, and he was incarcerated at the Shawnee Correctional Center.4

While he was serving his three-year sentence, the INS issued Solorzano-Patlan a Notice to Appear, thereby initiating removal proceedings against him. See 8 U.S.C. sec. 1229. The Notice to Appear charged that Solorzano-Patlan was subject to removal from the United States based on the INS's determination that his 1995 Illinois burglary conviction was classified as an aggravated felony. See 8 U.S.C. sec. 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable.").

On December 16, 1998, the Immigration Judge (IJ) conducted removal proceedings to determine the question of Solorzano-Patlan's deportability. Solorzano-Patlan appeared before the IJ and admitted only

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the factual allegations contained in the Notice to Appear, but argued that his burglary conviction did not rise to the level of an "aggravated felony," and should not be classified as such, because it was neither a "burglary offense" under 8 U.S.C. sec. 1101(a)(43)(G) nor a "crime of violence" under 8 U.S.C. sec. 1101(a)(43)(F).

The IJ rejected Solorzano-Patlan's arguments, and concluded, without analyzing the specific characteristics of Solorzano-Patlan's offense, that his 1995 Illinois burglary conviction, by the very title of the offense, satisfied the "burglary offense" definition of aggravated felony. Also, the IJ only looked to the "generic elements of the offense" and found that Solorzano-Patlan's conviction satisfied the "crime of violence" definition of aggravated felony because, according to the IJ, "burglary of an auto ordinarily presents risk that physical force would be used against property." Thus, finding that Solorzano-Patlan had committed an aggravated felony, the IJ terminated Solorzano-Patlan's status as a legal permanent resident and ordered him deported to Mexico.

Solorzano-Patlan appealed the IJ's decision to the BIA. On August 31, 1999, the BIA affirmed the IJ's decision, and concluded that Solorzano-Patlan's violation of the Illinois burglary statute "falls easily within the definition of a 'burglary offense.'" The BIA further concluded that Solorzano-Patlan committed a "crime of violence" because, according to the BIA (which relied on Fifth Circuit caselaw), "[t]he burglary of a vehicle involves a substantial risk that physical force may be used against persons or property."5 The BIA went on to hold that the IJ correctly decided that Solorzano-Patlan was an aggravated felon, and dismissed Solorzano-Patlan's appeal. Solorzano-Patlan petitions for review.

II. ANALYSIS

Under The Immigration and Nationality Act (INA) "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. sec. 1227 (a)(2)(A)(iii). Additionally, the transitional rules set forth in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, section 309(c)(4), state that appeals of final orders of deportation entered after October 30, 1996, shall not be permitted "in the case of an alien who is inadmissible or deportable by reason of having committed... [an aggravated felony]." Because we have the authority to determine jurisdiction, we may review whether Solorzano-Patlan has committed an aggravated felony under 8 U.S.C. sec....

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