870 F.3d 228 (3rd Cir. 2017), 15-1160, Mateo v. Attorney General United States

Docket Nº:15-1160
Citation:870 F.3d 228
Opinion Judge:VANASKIE, Circuit Judge.
Party Name:WILSON EMILIO PEGUERO MATEO, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent
Attorney:For Petitioner: Tracey M. Hubbard, Esq. (ARGUED), Scranton, PA. For Respondent: Matthew A. Connelly, Esq. (ARGUED), Thomas. W. Hussey, Esq., United States Department of Justice, Office of Immigration Litigation, Washington, DC.
Judge Panel:Before: McKEE, JORDAN, and VANASKIE, Circuit Judges.
Case Date:September 06, 2017
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
SUMMARY

Mateo, a 21-year-old citizen of the Dominican Republic, was admitted to the U.S. in 2010 as a lawful permanent resident. In 2013, he pleaded guilty to the felony charge of criminal conspiracy for an underlying offense Robbery of a Motor Vehicle. A “person commits a felony of the first degree if he steals or takes a motor vehicle from another person in the presence of that person or any other... (see full summary)

 
FREE EXCERPT

Page 228

870 F.3d 228 (3rd Cir. 2017)

WILSON EMILIO PEGUERO MATEO, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

No. 15-1160

United States Court of Appeals, Third Circuit

September 6, 2017

Argued: April 28, 2016.

On Petition for Review of a Decision of the Board of Immigration Appeals. (Agency Case No. A061-490-292). Immigration Judge: Honorable Walter A. Durling.

For Petitioner: Tracey M. Hubbard, Esq. (ARGUED), Scranton, PA.

For Respondent: Matthew A. Connelly, Esq. (ARGUED), Thomas. W. Hussey, Esq., United States Department of Justice, Office of Immigration Litigation, Washington, DC.

Before: McKEE, JORDAN, and VANASKIE, Circuit Judges.

OPINION

Page 229

VANASKIE, Circuit Judge.

This appeal requires us to determine whether Wilson Emilio Peguero Mateo's conspiracy plea for Robbery of a Motor Vehicle under Pennsylvania law qualifies as a " crime of violence" under 18 U.S.C. § 16(b), as incorporated into 8 U.S.C. § 1101(a)(43)(F) of the Immigration and Nationality Act (" INA" ). In light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and our decision in Baptiste v. AG United States, 841 F.3d 601, 621 (3d Cir. 2016), petition for cert. filed (U.S. Feb. 6, 2017) (No. 16-978), we hold that § 16(b), as incorporated into the INA, is unconstitutionally vague. We will therefore grant the Petition for Review, vacate the order of removal, and remand for further proceedings.

I.

Mateo is a twenty-one-year-old native and citizen of the Dominican Republic who was admitted to the United States on August 11, 2010 as a lawful permanent resident. On June 17, 2013, he pleaded guilty to the felony charge of criminal conspiracy pursuant to 18 Pa. Cons. Stat. § 903. The underlying offense for his conspiracy plea was Robbery of a Motor Vehicle under Pennsylvania law, which dictates that " [a] person commits a felony of the first degree if he steals or takes a motor vehicle from another person in the presence of that person or any other person in lawful possession of the motor vehicle." 18 Pa. Cons. Stat. § 3702. On December 3, 2013, Mateo was convicted and sentenced to eleven to twenty-three months' confinement, and thirty-six months' probation.

On January 16, 2014, the United States Department of Homeland Security (" DHS" ) served Mateo with a Notice to Appear, charging Mateo as removable as an alien convicted of an aggravated felony pursuant to § 237(a)(2)(A) of the INA, 8 U.S.C. § 1227(a)(2)(A). Specifically, DHS stated that Mateo was subject to removal because his Robbery of a Motor Vehicle conviction constituted an aggravated felony

Page 230

under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), and was a " crime of violence" as defined in INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).1 To define a " crime of violence," the INA incorporates 18 U.S.C. § 16, which defines the phrase as follows: The term " crime of violence" means--

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Mateo filed a Motion to Terminate Proceedings, challenging his removability on the ground that Robbery of a Motor Vehicle is not an aggravated felony because it is not a crime of violence as defined in § 16(b). The Immigration Judge (" IJ" ) disagreed, finding that Robbery of a Motor Vehicle is a crime of violence, and sustained the charge of removability based on Mateo's conspiracy conviction.2

Mateo appealed the IJ's decision to the Board of Immigration Appeals (" BIA" ). The BIA adopted and affirmed the IJ's decision with regard to Mateo's removability as an alien convicted of conspiracy to commit an aggravated felony that was deemed a crime of violence. The BIA did not address the remaining aspects of the IJ's decision and Mateo's appeal was dismissed. This Petition for Review ensued.

On appeal before this Court, Mateo initially argued that the BIA improperly determined, as a matter of law, that Robbery of a Motor Vehicle is a " crime of violence" under § 16(b), as incorporated into the INA. Accordingly, he requested that, per this Court's opinion in Aguilar v. Attorney General of the United States, 663 F.3d 692 (3d Cir. 2011), we find that the Robbery of a Motor Vehicle statute is " overly broad" and that, using the categorical approach, his conviction under the statute was not a crime of violence under the INA. The case was initially submitted on the briefs without argument.

Just before the case was submitted, however, the Government filed a letter pursuant to Federal Rule of Appellate Procedure 28(j) informing the Court that the Ninth Circuit, in Dimaya v. Lynch, 803 F.3d 1110 (2015), held that § 16(b), as incorporated into the INA, is unconstitutionally vague in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Mateo then sent his own Rule 28(j) letter, arguing we should also find that § 16(b), as incorporated into the INA, is unconstitutionally vague. Thereafter, we ordered supplemental briefing and oral argument addressing whether the vagueness standard should be applied in the immigration context and, if

Page 231

so, whether § 16(b), as incorporated into the INA, is unconstitutionally vague given the Supreme Court's decision in Johnson.

Pending in our own Court at the time we heard oral argument in this matter was a petition for review in another deportation case, Baptiste v. Attorney General, No. 14-4476, which also presented the question of whether the definition of " crime of violence" in 18 U.S.C. § 16(b) is void for vagueness. We deferred reaching a decision in this matter pending a ruling in Baptiste. Separately, on September 29, 2016, certiorari was granted in Dimaya.3 In light of this development, we opted to hold this matter C.A.V.4

Dimaya was argued before the Supreme Court on January 17, 2017, and a ruling was expected by the end of June, 2017. Then, on June 26, 2017, the Court ordered that Dimaya be re-argued during the...

To continue reading

FREE SIGN UP