In re Brieva-Perez
| Decision Date | 07 June 2005 |
| Docket Number | File A36 099 993,Interim Decision Number 3514 |
| Parties | In re Miguel Antonio BRIEVA-Perez, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated October 15, 2003, an Immigration Judge found the respondent removable as charged and denied his application for a waiver under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994). The respondent has appealed, arguing that his conviction for "unauthorized use of a motor vehicle" is not a crime of violence under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2000). Alternatively, he argues that the Immigration Judge erred in finding him ineligible for a section 212(c) waiver for failure to demonstrate a ground of inadmissibility comparable to the ground on which he was found removable. The respondent's appeal will be dismissed.
The respondent is a native and citizen of Colombia who was admitted to the United States in 1980 as a lawful permanent resident. On June 17, 1993, he pleaded guilty in a Texas State court to "unauthorized use of a motor vehicle" in violation of section 31.07(a) of the Texas Penal Code. Adjudication was initially deferred and an order of 5 years' probation was entered. After failure to comply with the conditions of his probation, the respondent was adjudicated guilty on August 15, 1995, and was sentenced to 5 years' confinement. He served less than a year of this sentence.
In February 2003, the Immigration and Naturalization Service (now the Department of Homeland Security) commenced removal proceedings based on the respondent's conviction. Initially, the Service charged the respondent under the aggravated felony ground for removal, section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), for a conviction relating to a "theft offense" under section 101(a)(43)(G). The Service subsequently withdrew this charge and substituted an aggravated felony "crime of violence" charge under section 101(a)(43)(F) of the Act.
The Immigration Judge found that the Service met its burden of demonstrating that the respondent's offense was an aggravated felony crime of violence under controlling circuit court precedent. See United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999) (). The Immigration Judge also found that the respondent was ineligible for a waiver under section 212(c) of the Act because he had not demonstrated a comparable ground of inadmissibility. As no other relief was sought, the Immigration Judge ordered the respondent removed from the United States to Colombia.
In this appeal we must first decide whether the respondent's offense was a crime of violence and therefore an aggravated felony. If we conclude that he was convicted of a crime of violence, we must then determine if there is a comparable ground of inadmissibility for that ground of removal so as to provide a basis for a section 212(c) waiver.
Section 31.07(a) of the Texas Penal Code prohibits the "unauthorized use of a motor vehicle," defined as "intentionally or knowingly operat[ing] another's boat, airplane, or motor-propelled vehicle without the effective consent of the owner." Tex. Penal Code Ann. § 31.07(a) (Vernon 2004). The question is whether the respondent's conviction under this provision is for an aggravated felony "crime of violence" under section 101(a)(43)(F) of the Act. That section includes within the definition of an "aggravated felony"
a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment [is] at least one year.
In turn, 18 U.S.C. § 16 (2000) defines a "crime of violence" as
(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.
The respondent's offense is not a § 16(a) offense because the Texas statute under which he was convicted does not include the use of force as an element of the offense. The focus in this case, therefore, is on whether his offense meets the requirements of § 16(b). There is no dispute that the respondent was convicted of a felony offense. The only question is whether the offense is one 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." 18 U.S.C. § 16(b).
In United States v. Galvan-Rodriguez, supra, the United States Court of Appeals for the Fifth Circuit addressed the question whether a Texas conviction for "unauthorized use of a motor vehicle" was a conviction for an aggravated felony "crime of violence" in the context of a sentencing enhancement determination. Under the applicable United States Sentencing Guidelines, the question whether an enhancement was appropriate turned on whether the respondent's conviction was for a "crime of violence" within the meaning 18 U.S.C. § 16.
The court in Galvan-Rodriguez began its analysis by explaining that the phrase "by its nature" in 18 U.S.C. § 16(b) "requires courts to employ a categorical approach — without examining the underlying facts surrounding the conviction — in determining whether an offense constitutes a crime of violence." United States v. Galvan-Rodriguez, supra, at 219. The court then identified a number of offenses that, by their nature, involve a substantial risk that physical force may be used against the person or property of another during the course of their commission and are therefore crimes of violence under § 16(b), including indecency with a child, United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir. 1996); burglary of a vehicle, United States v. Ramos-Garcia, 95 F.3d 369 (5th Cir. 1996); burglary of an automobile or nonresidential building, United States v. Rodriguez-Guzman, 56 F.3d 18 (5th Cir. 1995); and burglary of a habitation, United States v. Guadardo, 40 F.3d 102 (5th Cir. 1994). Comparing these offenses to the crime at issue, the court reasoned as follows:
Just as burglary of a vehicle involves a substantial risk that property might be damaged or destroyed in the commission of the offense, the unauthorized use of a vehicle likewise carries a substantial risk that the vehicle might be broken into, `stripped,' or vandalized, or that it might become involved in an accident, resulting not only in damage to the vehicle and other property, but in personal injuries to innocent victims as well.
United States v. Galvan-Rodriguez, supra, at 219. The court therefore held that the Texas offense of unauthorized use of a motor vehicle qualifies as a crime of violence under 18 U.S.C. § 16(b).
Although Galvan-Rodriguez interpreted § 16(b) in the context of the Sentencing Guidelines, the court's holding in that case is controlling in determining the scope of § 16(b) as referenced in the immigration laws at section 101(a)(43)(F) of the Act. See United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001) ().
The respondent's argument that Galvan-Rodriguez has been overruled by United States v. Charles, 301 F.3d 309 (5th Cir. 2002), is mistaken. The court in Charles addressed whether simple automobile theft is a crime of violence under the Sentencing Guidelines at U.S.S.G. § 4B1.2(a)(2). See 18 U.S.C.A. ch. 4, § 4B1.2(a)(2) (West Supp. 2005). Unlike the Sentencing Guidelines provision considered in Galvan-Rodriguez, § 4B1.2(a)(2) did not refer to the definition of a crime of violence in 18 U.S.C. § 16. Rather, it referred, in relevant part, to an offense that "involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). The court in Charles pointed out a number of differences between the requirements of § 4B1.2(a)(2) and those of 18 U.S.C. § 16(b). Notably, "section 16(b) applies to the use of force against person and property, whereas § 4B1.2(a)(2) only applies to conduct that presents a serious potential risk of physical injury to another person." United States v. Charles, supra, at 311-12. Moreover, § 16(b) focuses on the nature of the offense, whereas § 4B1.2(a)(2) focuses on conduct. Id. at 312. The court in Charles concluded that "we limit our holding in United States v. Galvan-Rodriguez, to its property aspects and to § 16 cases." Id. at 314 (citation omitted); see also United States v. Lee, 310 F.3d 787, 790 (5th Cir. 2002) (...
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