209 F.3d 788 (5th Cir. 2000), 99-60757, Lopez-Elias v Reno

Docket Nº:99-60757
Citation:209 F.3d 788
Party Name:Ricardo Lopez-Elias, Petitioner, v. Janet Reno, Attorney General,Respondent.
Case Date:May 01, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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209 F.3d 788 (5th Cir. 2000)

Ricardo Lopez-Elias, Petitioner,


Janet Reno, Attorney General,Respondent.

No. 99-60757


May 1, 2000

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[Copyrighted Material Omitted]

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Petition for Review of an Order of the Board of Immigration Appeals

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This case requires the court once again to construe the criminal alien removal provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"). Specifically, we must determine whether a Texas conviction of burglary of a vehicle with the intent to commit theft constitutes a theft offense, a burglary offense, or a crime of violence--any of which alone would be sufficient to deny this court jurisdiction to review a final order of removal by the Immigration and Naturalization Service ("INS") and to authorize removal.

Because burglary of a vehicle with intent to commit theft is a crime of violence (though neither a burglary nor a theft), the IIRIRA deprives us of jurisdiction over this petition. We therefore grant the motion to dismiss.


In 1985, Ricardo Lopez-Elias was convicted in Texas state court of burglary of a vehicle with the intent to commit theft, in violation of TEX. PENAL CODE ANN. § 30.04(a) (West 1987), and sentenced to four years' imprisonment, suspended. In 1998, the INS served him with a notice to appear, charging him with being subject to removal as an aggravated felon, and in April 1999 an immigration judge ordered his removal. The Board of Immigration Appeals ("BIA") dismissed Lopez-Elias's appeal in October 1999, concluding that he had committed a theft offense, an aggravated felony under IIRIRA. See 8 U.S.C. § 1101(a)(43)(G).

Lopez-Elias filed a petition for direct review in this court on November 3, 1999, pursuant to 8 U.S.C. § 1252, arguing that he had not committed an aggravated felony, and alternatively claiming that the IIRIRA was an unconstitutionally retroactive law in violation of his right to due process. The INS now moves for dismissal of the petition on the ground that under the permanent provisions of IIRIRA, see 8 U.S.C. § 1252(a)(2)(C), 1 we lack jurisdiction over removal orders issued against criminal aliens.


We begin by examining the relevant provisions of federal immigration law as amended by IIRIRA. "Any alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). The term "aggravated felony" includes "(F) a crime of violence (as defined in section 16 of Title 18, 2 but not including a purely political

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offense) for which the term of imprisonment [is] at least one year" and "(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." § 1101(a)(43) (emphasis added). IIRIRA further provides that, "[n]otwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed" an aggravated felony. § 1252(a)(2)(C).

We have jurisdiction to review jurisdictional facts. 3 That Lopez-Elias's four-year sentence was suspended is of no significance, for IIRIRA makes plain that "[a]ny reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part." § 1101(a)(48)(B). Nor does Lopez-Elias dispute that he is in fact an alien. The only jurisdictional question, therefore, is whether he was convicted of an aggravated felony--that is, whether burglary of a vehicle with intent to commit theft constitutes a crime of violence, a theft offense, a burglary offense, or none of the above.

The INS claims that its conclusion that Lopez-Elias committed an "aggravated felony" is worthy of the familiar principles of deference to administrative agencies announced in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984). 4 Even assuming the ambiguity of the statutory terms of IIRIRA, however, the fact that courts defer to the INS's construction of its statutory...

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