Hernandez-Mancilla v. INS

• Decision Date: 11 April 2001
• Docket Number: No. 99-3608,PETITIONER,HERNANDEZ-MANCILL,99-3608
• Citation: 246 F.3d 1002
• Parties: (7th Cir. 2001) RAFAEL, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1002

246 F.3d 1002 (7th Cir. 2001)

RAFAEL HERNANDEZ-MANCILLA, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.

No. 99-3608

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Argued January 9, 2001

Decided April 11, 2001

Petition for Review of an Order of the Board of Immigration Appeals. No. A35-214-671

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

Samuel Der-Yeghiayan, INS, Chicago, IL, Paul Fiorino (argued), Dept. of Justice, Civ. Div., Immigration Litigation, John Ashcroft, Dept. of Justice, Washington, DC, for Respondent.

Before Flaum, Chief Judge, and Bauer and Coffey, Circuit Judges.

Bauer, Circuit Judge.

Rafael Hernandez-Mancilla, a native and citizen of Mexico and a lawful permanent resident of the United States, seeks review of the Board of Immigration Appeals' ("BIA") dismissal of his appeal from the Immigration Judge's ("IJ") decision to deport him under 8 U.S.C. sec. 1101(a)(43)(G). We affirm the BIA's dismissal.

BACKGROUND

On April 14, 1992, Hernandez-Mancilla pled guilty to the Illinois offenses of burglary of a motor vehicle, possession of burglary tools, and possession of a stolen motor vehicle. He was sentenced to six months imprisonment and forty-eight months probation, ordered to pay restitution, and enrolled in a drug abuse program. Hernandez-Mancilla violated the terms of his probation by committing the same offenses regarding a different motor vehicle. On June 24, 1994, he again pled guilty and was sentenced to two additional years probation and enrolled in another drug program. On February 29, 1996, Hernandez-Mancilla violated probation again, resulting in a sentence of six years imprisonment.¹

On November 8, 1996, the INS charged Hernandez-Mancilla as deportable under the Immigration and Nationality Act ("INA"), 8 U.S.C. sec. 1227(a)(2)(A)(ii) for being convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. On January 30, 1997, the INS brought additional charges against him under 8 U.S.C. sec. 1227(a)(2)(A)(iii) because he was convicted of an "aggravated felony" under sec. 1101(a)(43)(G). Hernandez-Mancilla admitted his convictions and conceded deportability for moral turpitude, but submitted that he was not deportable for committing an "aggravated felony." On September 30, 1998, the IJ issued a short written decision deeming Hernandez-Mancilla deportable as an "aggravated felon," adjudging him ineligible for relief, and ordering him to be deported.

On appeal to the BIA, Hernandez-Mancilla argued that none of his convictions should be classified as an "aggravated felony." He first posited that his burglary conviction was not a "burglary offense" under the definition of burglary developed in Taylor v. United States, 495 U.S. 575 (1990). Second, he argued that his conviction for possession of a stolen motor vehicle was not a "theft offense" because it lacked the essential element of theft, namely the intent to permanently deprive the owner of his or her property. He contended that both the crimes of theft and receipt require this culpability, whereas possession does not. The INS countered that his burglary conviction could be classified as both a "theft offense" and a "burglary offense," and that his conviction for possession of a stolen motor vehicle was a "theft offense."

On September 10, 1999, the BIA affirmed the IJ's conclusion and dismissed the appeal. The BIA said that not all Illinois burglary convictions would "rise to the level of a theft offense under the Act, because a defendant [could] be convicted for burglary in Illinois for entering a building or automobile with the intent to commit any felony, not just theft." However, the BIA found this case one in which burglary was a "theft offense." In so finding, the BIA relied on the language in the record of conviction for burglary, noting that Hernandez-Mancilla had "pled guilty to an indictment charging him with entering a motor vehicle 'with the intent to commit the offense of theft therein.'" This prompted the BIA to look to the definition of "theft" under 720 ILCS 5/16-1, which outlaws the taking of property with the intent to permanently deprive the owner of its use or benefit. The BIA noted that "the term theft offense incorporates violations other than those which are formally labeled theft." The BIA found that "[although intent] constitutes only one element of theft, [it] is the main element common to both theft and receipt of stolen property, the two offenses which are explicitly classified as theft offenses under section 101(a)(43)(G) of the Act." The BIA further noted, "not only did the respondent possess the intent to commit theft, but in entering the automobile without authorization, the respondent had clearly embarked on a plan of action in furtherance of this intent." In a footnote, the BIA wrote that sec. 1101(a)(43)(G) allows attempts to commit any listed "aggravated felony" to be classified as an "aggravated felony." The BIA reasoned that since attempted theft was a "theft offense," Hernandez-Mancilla's burglary conviction "should similarly fall under the definition of theft offense...." Therefore, the BIA held that his burglary conviction was a "theft offense."

Finding this alone a sufficient basis for deportation, the BIA declined to address whether Hernandez-Mancilla's burglary conviction was a "burglary offense" or whether his conviction for possession of a stolen motor vehicle was a "theft offense." Hernandez-Mancilla appealed.

DISCUSSION

"Any 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). "[N]o 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]." 8 U.S.C. sec. 1252(a)(2)(C). In other words, if Hernandez-Mancilla committed an "aggravated felony" we are stripped of jurisdiction. However, we have jurisdiction to ascertain whether we have jurisdiction. So, in a case such as this where the inquiry into jurisdiction and the merits is one in the same, we are empowered to determine whether an individual committed an "aggravated felony." See Xiong v. INS, 173 F.3d 601, 604 (7th Cir. 1999). An "aggravated felony" is, among other things, "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." 8 U.S.C. sec. 1101(a)(43)(G). An offense may be classified as an "aggravated felony" "whether in violation of Federal or State law." 8 U.S.C. sec. 1101(a)(43). The question then is whether any of Hernandez-Mancilla's offenses may be classified as an "aggravated felony," a jurisdictional question we review de novo. See Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th Cir. 2000).

Solorzano-Patlan v. INS forecloses the question of whether a conviction under 720 ILCS 5/19-1 for burglary of a motor vehicle is an "aggravated felony" because it is a "burglary offense" under sec. 1101(a)(43)(G). We held that it is not. Therefore, we consider whether either Hernandez-Mancilla's conviction for burglary under 720 ILCS 5/19-1 or his conviction for possession of a stolen motor vehicle under 625 ILCS 5/4-103(a)(1) may be classified as a "theft offense." As mentioned, the BIA declined to address whether his conviction for possession of a stolen vehicle was a "theft offense" since it classified his burglary conviction as such. We opt for the opposite approach and address whether his possession conviction renders him deportable.

In reaching a decision, we use the approach taken in Solorzano-Patlan. The INS charged Solorzano-Patlan deportable as an "aggravated felon" for committing a "burglary offense" under 720 ILCS 5/19-1. Solorzano-Patlan argued that his offense ought not be classified as an "aggravated felony." We began our analysis by recognizing that since "burglary offense" was not defined under the INA, a definition had to be fashioned through interpretative devices. Since state definitions of burglary vary wildly, we decided that how states classify crimes is not determinative; that is, even if a state labels an offense "burglary," we will not consider it per se a "burglary offense" under federal law. Relying on Taylor v. United States, we determined that, for the sake of uniformity, the conviction at issue must encompass the generic flavor of burglary. We discerned that burglary constituted "'the basic elements of unlawful entry, or remaining in, a building or structure, with intent to commit a crime.'" Id. at 874. We then looked to the record of conviction to discover whether Solorzano-Patlan's offense comprised these generic elements. See id. at 873, 875. Solorzano-Patlan had pled guilty to an Information which stated that he had "without authority, knowingly entered a 1994 Ford Explorer belonging to [another] with the intent to commit therein a theft." Id. at 871 (emphasis omitted). We noted that Solorzano-Patlan had admitted to having the intent to commit theft, not to having the intent to commit a felony, which is important since under the Illinois burglary statute a defendant may be charged for either. See id. at 873. We held that Solorzano-Patlan's conviction for burglary of a motor vehicle under 720 ILCS 5/19-1 was not a "burglary offense" because it did not jibe with the generic elements since it did not involve entering or remaining in a building or structure. See id. at 875.

Like the term "burglary offense," Congress did not define the phrase "theft offense (including receipt of stolen property)," and a plain reading of sec. 1101(a)(43)(G) does not reveal its meaning. Thus, following the rubric of Solorzano-Patlan, we must ascertain the generic elements of "theft offense (including receipt of stolen property)." At least two sister Circuits and the BIA have addressed the meaning of this phrase, so our...