Mateo v. Attorney Gen. United States

• Decision Date: 06 September 2017
• Docket Number: No. 15-1160.,15-1160.
• Citation: 870 F.3d 228
• Parties: Wilson Emilio Peguero MATEO, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

870 F.3d 228

Wilson Emilio Peguero MATEO, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent

No. 15-1160.

United States Court of Appeals, Third Circuit.

Argued April 28, 2016

Opinion Filed: September 6, 2017

Tracey M. Hubbard, Esq. (ARGUED), Bank Towers Building, 321 Spruce Street, Suite 509, 1500 Liberty Center, Scranton, PA 18503, Counsel for Petitioner

Matthew A. Connelly, Esq. (ARGUED), Thomas. W. Hussey, Esq., United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

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

OPINION

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 , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and our decision in Baptiste v. Attorney General , 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 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 , ––– U.S. ––––, 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 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 Court's October 2017 term. Given the further delay and the fact that this proceeding has been pending for a considerable period of time, we have chosen to decide Mateo's petition for review. In doing so, we must now follow our precedential holding in Baptiste , which on November 8, 2016, held that 18 U.S.C. § 16(b) is unconstitutionally vague when applied in a removal proceeding.⁵ 841 F.3d 601, 621 (3d Cir. 2016).

II.

The IJ had jurisdiction over Mateo's removal proceeding pursuant to 8 U.S.C. § 1229a. The BIA had jurisdiction to consider Mateo's appeal pursuant to 8 C.F.R. § 1003.1(b)(3). Pursuant to 8 U.S.C. § 1252(a), we have jurisdiction to consider " ‘questions of law raised upon a petition for review,’ including petitions for review of removal orders based on aggravated felony convictions." Tran v. Gonzales , 414 F.3d 464, 467 (3d Cir. 2005) (quoting 8 U.S.C. § 1252(a)(2)(D) ). "Since the interpretation of criminal provisions ‘is a task outside the BIA's special competence and congressional delegation ... [and] very much a part of this Court's competence,’ our review is de novo ." Aguilar , 663 F.3d at 695 (quoting Tran , 414 F.3d at 467 ).

III.

This appeal turns on the two questions we posed to the parties for supplemental briefing: (1) whether the constitutional vagueness standard should be applied in the civil/immigration context and, if so, (2) whether § 16(b), as incorporated into the INA, is unconstitutionally vague given the Supreme Court's decision in Johnson . The second question has been answered in the affirmative by Baptiste , and we are bound by that holding.⁶ We now answer the first question in the affirmative as well.

A.

The Supreme Court has explained that the " ‘void for vagueness' doctrine [is] applicable to civil as well as criminal actions." Boutilier v. INS , 387 U.S. 118, 123, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967) (citation omitted). In San Filippo v. Bongiovanni , this Court noted that "[l]esser degrees of specificity are required to overcome a vagueness challenge in the civil context than in the criminal context ... because the consequences in the criminal context are more severe." 961 F.2d 1125, 1135 (3d Cir. 1992) (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 498–99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ). Because the consequences of deportation are likewise severe, we take this opportunity to clarify that the vagueness doctrine should be applied in the civil immigration context just as it is applied in the criminal context, and that lesser degrees of specificity are not sufficient to overcome a vagueness challenge.

Indeed, the Supreme Court invoked the vagueness doctrine in the immigration context in Jordan v. De George precisely because of the severity of deportation. 341 U.S. 223, 231, 71 S.Ct. 703, 95 L.Ed. 886 (1951) ( "Despite the fact that this is not a criminal statute, we shall nevertheless examine the application of the vagueness doctrine to this case. We do this in view of the grave nature of deportation."). After the Supreme Court's decision in Jordan , the Court has since made it clear that "[i]t is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Reno v. Flores , 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (citing Kaoru Yamataya v. Fisher , 189 U.S. 86, 100–01, 23 S.Ct. 611, 47 L.Ed. 721 (1903) ). And as Justice Thomas explained in Johnson , the Supreme Court has "become accustomed to using the Due Process Clauses to invalidate laws on the ground of ‘vagueness,’ " as the doctrine "is quite sweeping" where a statute " ‘authorizes or even encourages arbitrary and discriminatory enforcement.’ " 135 S.Ct. at 2566 (Thomas, J., concurring in judgment) (quoting Hill v. Colorado , 530...