In re Olivares-Martinez
| Decision Date | 03 July 2001 |
| Docket Number | Interim Decision Number 3453,File A91 376 899. |
| Parties | In re Juan OLIVARES-Martinez, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
BEFORE: Board En Banc: SCIALABBA, Acting Chairman; SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, FILPPU, GUENDELSBERGER, MATHON, ROSENBERG, GRANT, MILLER, BRENNAN, ESPENOZA, OSUNA, and OHLSON, Board Members. Concurring Opinion: DUNNE, Vice Chairman; joined by MOSCATO, Board Member. Concurring and Dissenting Opinion: COLE, Board Member, joined by JONES, Board Member.1
ESPENOZA, Board Member:
In a decision dated May 13, 1999, an Immigration Judge found the respondent removable and ineligible for relief and ordered him removed from the United States. The respondent filed a timely appeal. The appeal will be sustained, and the removal proceedings will be terminated. The request for oral argument is denied.
The respondent is a native and citizen of Mexico who entered the United States prior to January 1, 1982, and became a lawful permanent resident on May 9, 1991. In a Notice to Appear (Form I-862) dated August 12, 1998, the respondent was charged with removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. V 1999), as an alien convicted of an aggravated felony as defined in section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. V 1999) (). The respondent was convicted on May 29, 1996, in the 103d Judicial District Court of Cameron County, Texas, of the felony offense of driving a motor vehicle while intoxicated ("DWI") with two prior convictions. His sentence for this offense, 5 years of incarceration, was suspended, and he was placed on probation for 5 years. At the hearing, the parties agreed that the respondent had been convicted under sections 49.04 and 49.09 of the Texas Penal Code.2
The Immigration Judge found that the respondent's conviction was for a crime of violence as defined by 18 U.S.C. § 16(b) (1994), and that the crime therefore fit the aggravated felony definition at section 101(a)(43)(F) of the Act. He accordingly concluded that the respondent was removable as charged. The Immigration Judge also found the respondent ineligible for relief from removal and ordered him removed from the United States. The respondent appealed from that decision. The Immigration and Naturalization Service submitted a memorandum in support of the decision of the Immigration Judge.
Subsequently, in Matter of Puente, Interim Decision 3412 (BIA 1999), we held that a conviction for Texas felony DWI was a "crime of violence" as defined in 18 U.S.C. § 16(b). We reasoned that the nature of the crime of operating a motor vehicle while intoxicated may create a substantial risk that physical force will be applied. The United States Court of Appeals for the Fifth Circuit initially affirmed the Board's reasoning in Camacho-Marroquin v. INS, 188 F.3d 649 (5th Cir. 1999). However, the Fifth Circuit withdrew that decision in Camacho-Marroquin v. INS, 222 F.3d 1040 (5th Cir. 2000).
The issue before us is whether a conviction for Texas felony DWI is a conviction for a crime of violence under 18 U.S.C. § 16(b), rendering an alien removable under the aggravated felony ground. As explained above, the Board has spoken on the matter. See Matter of Puente, supra; accord Tapia-Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001) (). However, we evaluate the respondent's removability under recent decisions issued by the Fifth Circuit, the controlling federal jurisdiction in this case. The Board historically follows a court's precedent in cases arising in that circuit. See Matter of Anselmo, 20 I&N Dec. 25, 31 (BIA 1989).
In United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001),3 the court addressed the question whether the defendant's conviction for Texas felony DWI was an aggravated felony conviction for sentence enhancement purposes under section 2L1.2 of the United States Sentencing Guidelines. See 18 U.S.C.A. ch. 2, § 2L1.2 (West 1996). The specific question was whether the defendant's conviction was for a crime of violence as defined in 18 U.S.C. § 16(b).
The Fifth Circuit pointed out that 18 U.S.C. § 16(b) focuses on the defendant's conduct itself and required that "there be a substantial risk that the defendant will use physical force against another's person or property in the course of committing the offense." United States v. Chapa-Garza, supra, at 925. The court concluded that a violation of the Texas felony DWI statute is not a crime of violence under 18 U.S.C. § 16(b). Id. at 928.
The outstanding question is what effect the sentence enhancement decision in United States v. Chapa-Garza, supra, has on immigration proceedings.4 While we were deliberating about this matter, the Fifth Circuit issued United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001). In that case, the court specifically rejected the concept of interpreting a federal statute differently in immigration and sentence enhancement cases.5
In United States v. Hernandez-Avalos, the Fifth Circuit has determined that uniformity should be employed when the same federal statute is being interpreted, notwithstanding its application in different contexts. The Fifth Circuit has also stated that it does not find that a Texas felony DWI is a crime of violence as defined in 18 U.S.C. § 16(b). United States v. Chapa-Garza, supra. The result of these decisions is that in cases arising in the Fifth Circuit, a conviction for Texas felony DWI is not classifiable as a crime of violence conviction under 18 U.S.C. § 16(b) for purposes of removability. Accordingly, we will not apply our decision in Matter of Puente, supra, in cases arising within the jurisdiction of the Fifth Circuit.
The respondent is therefore not removable under section 237(a)(2)(A)(iii) of the Act. The respondent's removal proceedings will be terminated.
ORDER: The appeal is sustained, and the removal proceedings are terminated.
1. Board Member Michael J. Heilman participated in the deliberations concerning this case, but retired prior to the issuance of the final decision.
2. Hereinafter, we refer to a violation of sections 49.04 and 49.09(b) as a "Texas felony DWI."
3. There is a petition for rehearing with suggestion for en banc consideration pending in this case as of the date of the instant decision. The mere filing of that rehearing petition does not alter the precedential effect of the court's ruling. However, we recognize that "unless otherwise expressly provided," the granting of a petition en banc vacates a panel opinion. See 5th Cir. R. 41.3. Any subsequent developments in the law will be addressed when necessary.
4. We declared our intent to address that issue in Matter of Herrera, 23 I&N Dec. 43 (BIA 2001).
5. We recognize that United States v. Hernandez-Avalos, supra, conflicts with our decision in Matter of K---- V---- D----, Interim Decision 3422 (BIA 1999). We do not revisit Matter of K---- V---- D----, supra, at this time.
CONCURRING OPINION: Mary Maguire Dunne, Vice Chairman; in which Anthony C. Moscato, Board Member, joined
I respectfully concur.
I agree with the result reached by the majority in this case. However, I think it unwise to publish a precedent decision while the United States Court of Appeals for the Fifth Circuit is considering the Attorney General's petition for a rehearing in United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), and without addressing the significant issue regarding uniformity raised by the decision in United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001). While this Board stated in Matter of Herrera, 23 I&N Dec. 43 (BIA 2001), that it would consider the effect of Chapa-Garza on our decision in Matter of Puente, Interim Decision 3412 (BIA 1999), there have been two intervening factors which I believe should cause us to move slowly and carefully in this area. One is the petition for a rehearing in Chapa-Garza, because if that petition is granted, the Fifth Circuit's decision in Chapa-Garza is vacated and Puente remains the controlling precedent in the Fifth Circuit. I am...
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