In re Puente-Salazar
| Decision Date | 29 September 1999 |
| Docket Number | File A36 582 517.,Interim Decision No. 3412. |
| Citation | 22 I&N Dec. 1006 |
| Parties | In re Arturo PUENTE-Salazar, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; SCIALABBA, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, COLE, MATHON, GUENDELSBERGER, JONES, and MOSCATO, Board Members. Concurring Opinion: GRANT, Board Member, joined by FILPPU, Board Member. Dissenting Opinion: ROSENBERG, Board Member.
JONES, Board Member.
The respondent timely appeals the Immigration Judge's decision finding him removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996), as a result of his conviction for an aggravated felony. The respondent's request for oral argument was granted and oral argument was held on November 3, 1998. Several briefs were filed on behalf of the respondent. An amicus brief also was filed in support of the respondent's position by counsel for the Lawyers' Committee for Civil Rights Under Law of Texas, American Immigration Lawyers Association, Refugio Del Rio Grande, and the National Immigration Project of the National Lawyers Guild. The Immigration and Naturalization Service promptly responded to all of the briefs submitted. We have considered all of the briefs submitted.1 The appeal will be dismissed.
The respondent, a native and citizen of Mexico, entered the United States as a lawful permanent resident on February 25, 1979. On October 31, 1997, the respondent was convicted in the 64th District Court of Hale County, Texas, of the offense of driving while intoxicated ("DWI") and was sentenced to confinement for a period of 5 years. The respondent was placed in removal proceedings by the Service on March 11, 1998. At the merits hearing before the Immigration Judge, the respondent denied all of the allegations on the Notice to Appear (Form I-862) and denied the charge of removability. The Immigration Judge determined that the record of conviction presented by the Service supported the allegation regarding the respondent's DWI conviction and sentence to confinement of 5 years. Further, the Immigration Judge found that, based on this evidence, the respondent had been convicted of an aggravated felony as charged by the Service. Finally, the Immigration Judge concluded that even though the respondent was a lawful permanent resident, he was statutorily ineligible for any form of relief as a result of his aggravated felony conviction. The respondent was ordered removed from the United States to Mexico.
Two issues are presented on appeal. The first is whether the respondent's conviction under the Texas DWI statute is a conviction for a crime of violence, and thus an aggravated felony. The second is whether the Board's precedent decision, Matter of Magallanes, Interim Decision 3341 (BIA 1998), controls with respect to a Texas DWI conviction.
The respondent argues that the Texas DWI statute encompasses conduct that is less than that required for an "aggravated felony" under the Arizona law reviewed in Matter of Magallanes, supra. He points out that the Texas DWI statute requires only the operation, but not necessarily the driving, of a motor vehicle. The respondent claims that the Texas law should be treated as a divisible statute, as it is too broad to support a crime of violence in all instances. The respondent contends that because we did not address the phrase, "or be in actual physical control of any vehicle," that is part of the Arizona statute considered in Matter of Magallanes, that decision should not apply to Texas DWI convictions. He alleges further that, in Magallanes, we misread the language in Matter of Alcantar, 20 I&N Dec. 801 (BIA 1994), and other case law, in defining what we believe to be "substantial risk." According to the respondent, we have equated "potential of resulting in harm" and "serious risk of physical injury" with "substantial risk." He also asserts that the DWI offense under Texas law does not always satisfy the test for a crime of violence set forth in 18 U.S.C. § 16(b) (1994).
The respondent argues further that, for purposes of 18 U.S.C. § 16(b), it must be established that the force that "may be used in the course of committing the offense" is accompanied by a specific intent to use such force. He maintains that a DWI conviction under Texas law does not require specific intent and therefore does not satisfy the test set forth in § 16(b).
Finally, the respondent argues that, under Texas law, there is a different, additional provision that renders DWI an aggravated offense, namely, a deadly weapon finding on a DWI conviction, where the potential for violence must be proved. See Tex. Penal Code Ann. § 1.07(17) (West 1997). He argues that a vehicle is not per se a deadly weapon, as it was not designed to cause death or serious bodily injury.
The Service argues that the analysis set forth in our precedent decision Matter of Magallanes, supra, applies to the Texas DWI statute at issue here, which covers acts that amount to less than actual driving. According to the Service, even though the Board did not address the fact that the respondent in Magallanes may have been doing something less than actually driving, the decision clearly stated that all the conduct described under the Arizona statute constitutes a crime of violence within the meaning of the Act. The Service also contends that, under Texas law, the punishable conduct of "operating" a vehicle under the influence requires, at a minimum, that a person take action that would affect the functioning of the vehicle in a manner that would enable the vehicle's use. See Denton v. State, 911 S.W.2d 388 (Tex. Crim. App. 1995).
Furthermore, the Service disagrees with the respondent's conclusion that because his conviction does not include an affirmative deadly weapon finding it is not a crime of violence. Finally, the Service supports the Board's conclusion in Magallanes that a DWI offense falls within the definition of a "crime of violence" found in 18 U.S.C. § 16(b), and that the nature of the crime involves a substantial risk that physical force may be used against the person or property of another during the commission of the offense.
On October 31, 1997, the respondent was convicted in the 64th District Court of Hale County, Texas, of the offense of driving while intoxicated ("DWI") under section 49.04 of the Texas Penal Code Annotated and was sentenced to confinement for a period of 5 years. The respondent was sentenced under the enhanced offenses and penalties provision of section 49.09(b) of the Texas Penal Code Annotated, which renders a misdemeanor DWI offense a felony in the third degree. A DWI offense under section 49.04 is enhanced to a third degree felony conviction only if the evidence demonstrates the elements necessary under section 49.09(b), which requires two prior convictions for operating a motor vehicle, aircraft, or watercraft while intoxicated. These two statutory sections provide, in pertinent part, as follows:
Driving While Intoxicated
(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
Tex. Penal Code Ann. § 49.04 (West 1997).
Enhanced Offenses and Penalties
If it is shown on the trial of an offense under Section 49.04, 49.05, or 49.06 that the person has previously been convicted two times of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, or an offense of operating a watercraft while intoxicated, the offense is a felony of the third degree.
Tex. Penal Code Ann. § 49.09(b) (West 1997).
Section 12.34 of the Texas Penal Code Annotated defines the term of imprisonment for an individual adjudged guilty of a third degree felony. The provision states as follows:
Third Degree Felony Punishment
(a) An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the institutional division for any term of not more than 10 years or less than 2 years.
b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000.
Tex. Penal Code Ann. § 12.34 (West 1997).
We note at the outset that the definition of an aggravated felony, as set forth at section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1994 & Supp. II 1996), has been the subject of numerous amendments since its introduction in 1988. The definition was most recently amended by section 321 of the Illegal...
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