256 F.3d 600 (7th Cir. 2001), 99-3861, Bazan-Reyes v Immigration Service

Docket Nº99-3861, 99-3917 and 99-3922
Citation256 F.3d 600
Party NameJose A. Bazan-Reyes, Wincenty Z. Maciasowicz, and Arnoldo Gomez-Vela, Petitioners-Appellants, v. Immigration and Naturalization Service and John D. Ashcroft, Respondents-Appellees.
Case DateJuly 05, 2001
CourtUnited States Courts of Appeals, Court of Appeals for the Seventh Circuit

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256 F.3d 600 (7th Cir. 2001)

Jose A. Bazan-Reyes, Wincenty Z. Maciasowicz, and Arnoldo Gomez-Vela, Petitioners-Appellants,

v.

Immigration and Naturalization Service and John D. Ashcroft, Respondents-Appellees.

Nos. 99-3861, 99-3917 and 99-3922

In the United States Court of Appeals, For the Seventh Circuit

July 5, 2001

Argued November 9, 2000

Petitions for Review of an Order of the Board of Immigration Appeals. Nos. A90 614 059, A44 224 586, A31 164 151

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[Copyrighted Material Omitted]

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Before Flaum, Chief Judge, and Ripple and Kanne, Circuit Judges.

Kanne, Circuit Judge.

Petitioners Jose A. Bazan-Reyes, Wincenty Z. Maciasowicz, and Arnoldo Gomez-Vela seek review of decisions by the Immigration and Naturalization Service ("INS") and the Board of Immigration Appeals ("BIA") finding them removable as a result of state drunk driving offenses. These cases were consolidated for the purposes of appeal because they all raise the same issue: are petitioners' state drunk driving convictions aggravated felonies as defined by the Immigration and Naturalization Act ("INA")? See 8 U.S.C. sec. 1101(43). Petitioners argue that the INS (in the case of Bazan-Reyes) and the BIA (in the case of Maciasowicz and Gomez-Vela) incorrectly determined that they were removable because driving while intoxicated is a crime of violence, and thus an aggravated felony. See id.; 18 U.S.C. sec. 16. Because we conclude that the INS and the BIA erred in finding that petitioners' state convictions are crimes of violence, we vacate the deportation orders of Bazan-Reyes, Maciasowicz, and Gomez-Vela and remand for proceedings consistent with this opinion.

I. History

Bazan-Reyes, Maciasowicz, and Gomez-Vela appeal from decisions of either the INS (in the case of Bazan-Reyes) or the BIA (in the case of Maciasowicz and Gomez- Vela) finding them removable. We will briefly discuss the background of each petitioner's appeal.

A. Bazan-Reyes

Bazan-Reyes, a citizen of Mexico, entered the United States without inspection in 1972. He applied for temporary resident alien status in 1988, but his application was denied because he did not submit information about his criminal record, which up to that point included four convictions for driving while intoxicated ("DWI"). Subsequently, on October 5, 1988, Bazan-Reyes was paroled into the United States. Eleven years later, in April 1999, Bazan-Reyes pleaded guilty to a Class D felony, Operating a Vehicle While Intoxicated, in violation of section 9-30-5-3 of the Indiana Code.1 As a result,

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he was sentenced to three years imprisonment. In June 1999, the INS commenced expedited removal proceedings against Bazan-Reyes pursuant to INA section 238. See 8 U.S.C. sec. 1228(b)(2). The INS issued a notice of intent to issue a final removal order, charging Bazan-Reyes with removability based on his April 1999 felony conviction for DWI. In the notice of intent, the INS alleged that Bazan-Reyes was guilty of an aggravated felony and removable on that basis. In October 1999, the INS issued a final administrative order finding Bazan- Reyes removable.

B. Maciasowicz

Maciasowicz, a citizen of Poland, was admitted to the United States as a lawful permanent resident in December 1993. In February 1998, he pleaded guilty to two counts of homicide by intoxicated use of a vehicle under Wisconsin Statute Section 940.09.2 He was sentenced to consecutive terms of five years on the first count and ten years on the second count; however, the sentence on the second count was withheld and probation ordered. In February 1999, the INS issued Maciasowicz a Notice to Appear ("NTA") charging him with removability pursuant to 8 U.S.C. sec. 1227 (a) (2)(A)(iii) based on his conviction for homicide by intoxicated use of a vehicle. At the hearing, the Immigration Judge ("IJ") found that homicide by intoxicated use of a vehicle under Wisconsin Statute Section 940.09 is an aggravated felony and ordered Maciasowicz removed on that basis. Maciasowicz appealed to the BIA, but his appeal was dismissed on October 12, 1999. The BIA found that the IJ correctly determined that Maciasowicz was deportable under 8 U.S.C. sec. 1227 because he had been convicted of a crime of violence.

C. Gomez-Vela

Gomez-Vela, a citizen of Mexico, was admitted to the United States as a lawful permanent resident in November 1971. In June 1997, Gomez-Vela was arrested for driving under the influence ("DUI"). Because he had two previous drunk driving convictions, he was charged with aggravated driving under the influence. See 625 Ill. Comp. Stat. 5/11-501(d)(1) (1997).3 Gomez-Vela

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pleaded guilty and was sentenced to twenty-six months in prison. The INS commenced removal proceedings against Gomez-Vela on March 2, 1999 by issuing a NTA. The NTA alleged that Gomez-Vela was removable because he was guilty of an aggravated felony under 8 U.S.C. sec. 1101(a)(43)(F). At his hearing before the IJ, Gomez-Vela admitted that he had been convicted for aggravated driving under the influence and sentenced to twenty-six months imprisonment. The IJ found that aggravated driving under the influence is a crime of violence as defined in 18 U.S.C. sec. 16(b), and therefore is an aggravated felony. On that basis, the IJ ordered Gomez-Vela removed. Gomez-Vela appealed the IJ's determination that he was guilty of an aggravated felony to the BIA, but the BIA dismissed his appeal on October 22, 1999.

Petitioners Bazan-Reyes, Maciasowicz, and Gomez-Vela all filed timely petitions for review of the INS and BIA decisions finding them removable. On appeal, petitioners argue that the INS and the BIA erred in their determination that Bazan-Reyes and Gomez-Vela's prior convictions for DWI and Maciasowicz's conviction for homicide by intoxicated use of a vehicle are aggravated felonies rendering them removable under 8 U.S.C. sec.1227(a)(2)(A)(iii).

II. Analysis

A. Jurisdiction

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (1996), limits our review of orders of removal. Under 8 U.S.C. sec. 1252(a)(2)(C), as amended by the 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)." Nevertheless, the government concedes that we retain jurisdiction in order to determine jurisdiction and may thus review the threshold issue of whether petitioners' convictions for driving while intoxicated are indeed aggravated felonies as defined by 8 U.S.C. sec. 1227 (a)(2)(A)(iii). See Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th Cir. 2000); Xiong v. INS, 173 F.3d 601, 604 (7th Cir. 1999). Here, the jurisdictional question and the merits collapse into one because the issue of whether petitioners' convictions were aggravated felonies also provides the basis for their challenges to removal. See Guerrero-Perez v. INS, 242 F.3d 727, 729-30 (7th Cir. 2001). Thus, we must decide whether the state drunk driving convictions of Bazan-Reyes, Maciasowicz, and Gomez-Vela4 can be considered aggravated felonies under 8 U.S.C. sec. 1101(a)(43).

B. Was Bazan-Reyes Properly Placed in Expedited Removal Proceedings?

Before turning to the question of whether petitioners have committed aggravated felonies, we must first address Bazan-Reyes' claim that the INS lacked subject matter jurisdiction to issue a final order of removal against him because he was improperly placed into expedited removal proceedings under section 238 of the INA, 8 U.S.C. sec. 1228. Unlike petitioners Maciasowicz and Gomez-Vela, Bazan

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Reyes was not a lawful permanent resident at the time the INS commenced deportation proceedings against him because he was paroled rather than admitted to the country. Therefore, the INS placed Bazan-Reyes in expedited removal proceedings pursuant to 8 U.S.C. sec. 1228. Section 1228(b) allows the Attorney General to issue an order of removal for a non-permanent resident alien if the alien is deportable under 8 U.S.C. sec. 1227(a)(2)(A)(iii), i.e., if the alien has committed an aggravated felony. Bazan-Reyes claims that he is not deportable under 8 U.S.C. sec. 1227(a)(2)(A)(iii) because the language of that provision forbids its application to parolees.

Bazan-Reyes' argument that parolees may not be placed in expedited removal proceedings is based on the introductory paragraph to 8 U.S.C. sec. 1227(a) which provides: "Any alien . . . in and admitted to the United States shall . . . be removed if the alien is within one or more of the following classes of deportable aliens." Bazan-Reyes argues that, since he has not been admitted to this country, he does not fall under 8 U.S.C. sec. 1227, and thus may not be placed in expedited proceedings. We disagree. Section 1228(b) of Title 8 of the United States Code, entitled "Removal of aliens who are not permanent residents," allows the Attorney General to utilize expedited proceedings to remove certain aliens who are not lawful permanent residents, including those who have been convicted of aggravated felonies. Nothing in that section prohibits its application to parolees, and, as the government points out, construing the statute to forbid its application to parolees would provide more favorable treatment for parolees than for lawfully admitted aliens. We cannot believe that Congress intended such a result. We find it more plausible that the reference to sec. 1227(a)(2)(A)(iii) simply operates to incorporate the definition of aggravated felony set out in that section to elucidate which non-lawful resident aliens may be placed in expedited proceedings. Therefore, we reject Bazan- Reyes' argument that he was improperly placed in removal proceedings and will consider whether his prior conviction--as well as the prior convictions of petitioners Maciasowicz and Gomez-Vela--...

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