214 F.3d 1128 (9th Cir. 2000), 98-70784, Ye v. INS.

Docket Nº:98-70784
Citation:214 F.3d 1128
Party Name:SAREANG YE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE and UNITED STATES ATTORNEY GENERAL JANET RENO, Respondents.
Case Date:June 09, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1128

214 F.3d 1128 (9th Cir. 2000)

SAREANG YE, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE and UNITED STATES ATTORNEY GENERAL JANET RENO, Respondents.

No. 98-70784

Office of the Circuit Executive

United States Court of Appeals, Ninth Circuit

June 9, 2000

Argued and Submitted April 25, 2000--San Francisco, California

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[Copyrighted Material Omitted]

Page 1130

Lynn Marcus, University of Arizona College of Law, Tucson, Arizona, for the petitioner.

Heather Phillips (argued) and David V. Bernal, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Boaard of Immigration Appeals INS No. A25-315-317

Before: Betty B. Fletcher, Michael Daly Hawkins, and Sidney R. Thomas, Circuit Judges.

OPINION

HAWKINS, Circuit Judge:

Sareang Ye petitions for review of a final order of deportation issued by the Board of Immigration Appeals ("BIA"). The BIA found that Ye was removable under 8 U.S.C. S 1227(a)(2)(A)(iii) as an "alien who is convicted of an aggravated felony." Ye argues that his conviction for vehicle burglary does not qualify as an "aggravated felony " because it is neither a "burglary" nor a "crime of violence" as those terms are used in the definition of "aggravated felony. " We agree and grant the petition for review.

I. FACTS AND PROCEDURAL BACKGROUND

Ye was admitted to the United States in 1982 at the age of seven and became a legal permanent resident in February 1983. In 1994, he pled guilty to two charges of vehicle burglary under California Penal Code S 4591 and received a sentence of three years imprisonment on one count and eight months imprisonment on the other. Upon his release, Ye was taken into custody by the INS, which issued him a Notice to Appear on July 7, 1997. The Notice to Appear charged that Ye had been convicted of the offense of vehicle burglary and that he was therefore removable as an alien who has been convicted of an aggravated felony.

Ye appeared pro se at his removal hearing before the Immigration Judge ("IJ") and admitted that he had been convicted of vehicle burglary. As a result, the IJ found that he was subject to removal under 8 U.S.C. S 1227(a)(2)(A)(iii) for having committed an aggravated felony.2 The IJ subsequently

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found that because the offense was not a "particularly serious crime" under 8 U.S.C. S 1231(b)(3)(b), Ye could apply for withholding from removal. Then, after a hearing at which Ye testified that he would be killed if sent back to Cambodia, the IJ granted his application for withholding of removal.

Ye, now represented by counsel, appealed the finding that he was subject to removal, arguing that his conviction for vehicle burglary was not a "burglary" under the definition of aggravated felony at 8 U.S.C. S 1101(a)(43)(G).3 The INS argued that his conviction did qualify as a "burglary," but that even if it did not, it constituted a "crime of violence" under section 1101(a)(43)(F) of the aggravated felony definition. The BIA agreed. Without deciding whether Ye had been convicted of a burglary under section 1101(a)(43)(G), it held that Ye had been convicted of a "crime of violence " under section 1101(a)(43)(F) and that he was therefore removable under section 1227(a)(2)(A)(iii) for having committed an aggravated felony.

On appeal to this court, Ye argues that his conviction for vehicle burglary was neither a "burglary" nor a "crime of violence," as those terms are used in the definition of "aggravated felony." The INS argues that Ye's conviction falls under both categories and that, as a result, this court lacks jurisdiction to hear his appeal.

II. ANALYSIS

The Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), limits our review of orders of removal. Under 8 U.S.C. S 1252(a)(2)(C), as amended by IIRIRA, "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section . . . 1227(a)(2)(A)(iii) . . . ." Section 1227(a)(2)(A)(iii) provides that an alien convicted of an aggravated felony may be deported. So under IIRIRA, this court does not have jurisdiction to review a final order of removal against "an alien who is removable by reason of having committed" an aggravated felony.

Because the issue in this appeal is whether Ye committed an aggravated felony, and because we have jurisdiction to determine our own jurisdiction, see Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir. 2000), the jurisdictional question and the merits collapse into one. If Ye did not commit an aggravated felony, we have jurisdiction, and Ye wins on the merits. If Ye did commit an aggravated felony, we do not have jurisdiction (and Ye would lose on the merits anyway). The case thus turns on whether Ye's conviction for vehicle burglary qualifies as a "burglary" or a "crime of violence" as those terms are used in the definition of "aggravated felony."

This court reviews de novo the question of whether a particular offense constitutes an aggravated felony for which an...

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