United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 19, 2007
_______________________ Charles R. Fulbruge III
Clerk
No. 05-60639
_______________________
MIGUEL ANTONIO BRIEVA-PEREZ,
Petitioner,
versus
ALBERTO R. GONZALES
UNITED STATES ATTORNEY GENERAL,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals
Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit
Judges.
EDITH H. JONES, Chief Judge:
Petitioner Miguel Antonio Brieva-Perez (“Brieva”) appeals
a Board of Immigration Appeals (“BIA”) decision holding that his
crime of unauthorized use of a vehicle constitutes a crime of
violence rendering him removable, and that he is ineligible to
apply for relief under former Immigration and Nationality Act
(“INA”) § 212(c), 8 U.S.C. § 1182(c), because his crime lacks a
comparable ground for inadmissability under INA § 212(a).1 Because
United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999),
remains binding precedent and Brieva was removable under the law in
effect at the time of his plea, we DENY the petition for review.
I. BACKGROUND
Brieva is a native and citizen of Colombia. He was
admitted to the United States in 1980 as a lawful permanent
resident. He is married to a United States citizen, and is the
father of citizen children. In June of 1993, Brieva pleaded guilty
to unauthorized use of a vehicle (“UUV”) in violation of TEX. PENAL
CODE ANN. § 31.07(a). Adjudication of guilt was deferred, and he
was sentenced to five years probation. After violating probation
in 1995, he was adjudicated guilty and sentenced to a term of
imprisonment of five years, of which he served less than one year.
In February 2003, the Immigration and Naturalization
Service (“INS”) charged Brieva with being removable for having been
convicted of an aggravated felony for a theft offense under
8 U.S.C. § 1101 (a)(43)(G). See 8 U.S.C. § 1227(a)(2)(A)(iii).
The INS later withdrew this charge and substituted a charge for an
aggravated felony crime of violence under 8 U.S.C.
§ 1101(a)(43)(F).
The Immigration Judge (“IJ”) determined that Brieva was
1
We note that two companion cases, Vo v. Gonzales, No. 05-60518, and
Avilez-Granados v. Gonzales, No. 05-61165, were heard on the same day and contain
related issues and overlapping reasoning.
2
removable for having been convicted of an aggravated felony because
UUV was a crime of violence under 8 U.S.C. § 16(b). See
Galvan-Rodriguez, 169 F.3d 217. The IJ also ruled that, despite
his long residency and family ties in the United States, Brieva was
ineligible for an INA § 212(c) waiver because his offense lacked a
comparable ground of inadmissibility in § 212(a). The IJ ordered
Brieva deported to Colombia and denied his request for a section
212(c) waiver.
Brieva appealed to the BIA, arguing that his conviction
for UUV was not a crime of violence. He also argued that the IJ
erred in ruling that he was ineligible for a section 212(c) waiver
for failure to demonstrate a ground of inadmissibility. He argued
that INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001), should
apply to his case, making him eligible for § 212(c) relief. The
BIA dismissed Brieva’s appeal, ruling that his offense was a crime
of violence and that he was ineligible for § 212(c) relief because
his offense could not be considered a crime involving moral
turpitude under § 212(a) and there was no other comparable ground
of inadmissability. Brieva filed a timely petition for review
before this court.2
II. DISCUSSION
A. Jurisdiction
2
Brieva does not directly challenge the BIA’s decision on
comparability. The First Circuit recently approved the comparability reasoning
in Brieva, see Kim v. Gonzalez, 468 F.3d 58 (1st Cir. 2006), and this court has
done likewise in the companion case to today’s, Vo v. Gonzales, No. 05-60518.
3
Under the REAL ID Act, this court lacks jurisdiction to
review any removal order based on, inter alia, commission of an
aggravated felony. See 8 U.S.C. § 1252(a)(2)(C);
Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir.), cert.
denied, __ U.S. __, 127 S. Ct. 40 (2006). However, the Act also
provides that none of the provisions precluding review “shall be
construed as precluding review of constitutional claims or
questions of law raised upon a petition for review.”
§ 1252(a)(2)(D). This court therefore has jurisdiction to decide
the legal and constitutional questions raised by Brieva. See
Hernandez-Castillo, 436 F.3d at 519. We review the BIA’s factual
determinations for substantial evidence. Chun v. INS, 40 F.3d 76,
78 (5th Cir. 1994). Questions of law are reviewed de novo,
according deference to the BIA’s interpretations of ambiguous
provisions of the INA. Hernandez-Castillo, 436 F.3d at 519.
B. Crime of Violence Determination
Brieva first contends that his UUV conviction was
improperly classified as a crime of violence and is therefore not
an aggravated felony. This argument, however, has been and remains
contrary to Fifth Circuit precedent.
In the immigration context, whether a crime is a crime of
violence, and therefore an aggravated felony under 8 U.S.C.
§ 1101(a)(43), is determined by the definition set forth in
4
18 U.S.C. § 16. See 8 U.S.C. § 1101(a)(43)(F). Section 16 defines
“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.
18 U.S.C. § 16. In Galvan-Rodriguez, this court concluded that UUV
was a crime of violence under § 16(b) because the offense by its
nature posed a substantial risk that force would be used against
the property or person of another. See 169 F.3d at 219. UUV
“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.”
Id.
In United States v. Jackson, 220 F.3d 635, 639 (5th Cir.
2000), the court drew on the language in Galvan-Rodriguez that UUV
involved a substantial risk that the vehicle might be involved in
an accident to hold that UUV was a crime of violence under Section
4B1.2(a) of the United States Sentencing Guidelines.3 In United
3
The definition of crime of violence in § 4B1.2(a) differs from
the § 16 definition and provides that “any offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that- (1) has as an
element the use, attempted use, or threatened use of physical force against the
person of another, or (2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a).
5
States v. Charles, 301 F.3d 309, 314 (5th Cir. 2002) (en banc),
however, this court held that “a crime is a crime of violence under
§ 4B1.2(a)(2) only if, from the face of the indictment, the crime
charged or the conduct charged presents a serious potential risk of
injury to a person.” (emphasis added). Charles, therefore,
explicitly overruled Jackson and limited Galvan-Rodriguez to its
property aspects and to § 16 cases, like this one. Id.
Brieva attempts to apply the reasoning of Charles to the
instant case. Charles, however, does not extend to § 16 crime of
violence cases, and is therefore inapplicable. See
Charles, 301 F.3d at 311-12, 314 (distinguishing § 16 from U.S.S.G.
§ 4B1.2(a)).
This case is also indistinguishable from Galvan-Rodriguez
on the ground, asserted by Brieva, that his UUV conviction was for
“joyriding” and involved no actual use of force. Section 16(b)
plainly requires inquiry only into the “nature” of the offense as
it poses the risk of use of force, and not into the facts
underlying a particular conviction.
Brieva further argues that the Supreme Court’s decision
in Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377 (2004), casts
doubt on Galvan-Rodriguez. This argument is meritless. In Leocal,
the Supreme Court held that a statute prohibiting driving while
intoxicated resulting in serious bodily injury lacks a mens rea
element, or has at best a negligence requirement, and cannot be
considered a crime of violence under § 16(b). Id. at 13. The
6
Court interpreted § 16(b) to require a substantial risk of
intentional use of force. This does not mean that a statute must
have an element of intent to cause harm to another’s person or
property to be considered a crime of violence under § 16. Indeed,
such an interpretation would render § 16(b) meaningless, as § 16(a)
already covers crimes with such an element. Rather, Leocal
requires that the nature of the offense involves a substantial risk
of the intentional use of force. See id. Leocal is fully
consistent with this court’s construction of the Texas UUV Statute
in Galvan-Rodriguez.
C. Retroactivity
1. Crime of Violence Definition
Brieva further asserts that the retroactive application
of Galvan-Rodriguez, decided six years after he pled guilty and
four years after his guilt was adjudicated, violates due process.
He argues that he should not be removable, as his crime had no
negative immigration consequences at the time he entered into his
plea bargain.
Contrary to Brieva’s assertions, no law is being applied
to him retroactively. 8 U.S.C. § 1101(a)(43)(F) has defined crimes
of violence as aggravated felonies since 1990, prior to Brieva’s
plea. See Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat.
4978. No relevant statutory change took place following his
conviction; the only change that occurred was that this court
7
declared that, based on the continuously effective statutory
definition, UUV qualifies as a crime of violence and therefore is
a deportable aggravated felony. See Galvan-Rodriguez, 169 F.3d at
220. As Brieva was already on notice, prior to his plea, that a
conviction for a crime of violence rendered him deportable, there
are no due process retroactivity concerns.4
2. IIRIRA § 321
Brieva also asserts that retroactively applying § 321 of
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546, violates
due process because § 321 changed the definition of an aggravated
felony after he entered into his plea bargain. Brieva lacks
standing to assert this claim.
At the time of his plea, an aggravated felony was defined
as “any crime of violence (as defined in section 16 of Title 18,
not including a purely political offense) for which the term of
imprisonment imposed...is at least 5 years.” 8 U.S.C.
§ 1101(a)(43) (1993 version). The enactment of § 321(a)(3) in 1996
reduced the minimum term of imprisonment from five years to one.
However, although Brieva was not sentenced to a term of
imprisonment when he originally entered a guilty plea, his
4
Brieva, in fact, initially took a deferred adjudication; thus, had
he successfully completed his probation, he would not have faced deportation. It
is possible that Brieva took this deal with the knowledge that his crime could
constitute a removable crime of violence and a conviction would have negative
immigration consequences.
8
probation violation resulted in the imposition of a five-year
imprisonment term. Thus, he met the definition for an aggravated
felony prior to the IIRIRA amendments and lacks standing to
challenge the retroactive application of § 321. See Valley Forge
Christian Coll. v. Ams. United for Separation of Church & State,
Inc., 454 U.S. 464, 472, 102 S. Ct. 752, 758 (1982).
D. Equal Protection
Brieva argues he is being denied equal protection of the
law because he is ineligible for relief under INA § 212(c), while
aliens who have committed more serious crimes still can obtain
§ 212(c) waivers. However, no law is being applied to Brieva
unequally.
Congress repealed § 212(c) with the passage of IIRIRA in
1996. See Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-597. The
Supreme Court, however, held that § 212(c) relief must remain
available for aliens “whose convictions were obtained through plea
agreements and who, notwithstanding those convictions, would have
been eligible for § 212(c) relief at the time of their plea under
the law then in effect.” St. Cyr, 533 U.S. at 326, 121 S. Ct. at
2293. Thus, aliens who pleaded guilty before the repeal of
§ 212(c) remain eligible to apply for discretionary relief.
To be eligible for such relief, however, there must be a
comparable ground of inadmissability to the alien’s ground of
removability. See Chow v. INS, 12 F.3d 34, 38 (5th Cir. 1993);
9
Matter of Blake, 23 I. & N. Dec. 722, 724 (BIA 2005). The IJ and
BIA concluded there is no comparable ground of inadmissibility to
Brieva’s crime, a finding we upheld in a similar case argued before
this panel. See Vo v. Gonzales, No. 05-60518 (“crimes involving
moral turpitude” provision of § 212(a) is insufficient to qualify
as a statutory counterpart to UUV); see also De la Paz Sanchez v.
Gonzales, 473 F.3d 133 (5th Cir. 2006) (UUV lacks statutory
counterpart, and § 212(c) relief therefore is unavailable); Caroleo
v. Gonzales, 476 F.3d 158, 164-68 (3d Cir. 2007)(aggravated felony
of “crime of violence” does not have a statutory counterpart in INA
§ 212(a)); Valere v. Gonzales, 473 F.3d 757, 761-62 (7th Cir.
2007)(8 C.F.R. § 1212.3 is not impermissibly retroactive). Brieva
therefore does not qualify for a waiver and is not similarly
situated to those aliens who pleaded guilty relying on the
availability of § 212(c) relief.
Brieva’s case is distinguishable from Cordes v. Gonzales,
421 F.3d 889 (9th Cir. 2005), where the Ninth Circuit determined it
was an equal protection violation to deny § 212(c) availability to
aliens whose crimes only rendered them removable based on changes
enacted to the definition of an aggravated felony after their pleas
took effect. The government argued that, because the aliens in
Cordes’s position were not removable when they entered their pleas,
they could not have pleaded guilty in reliance on the possibility
of a section 212(c) waiver. The court, however, determined that
the distinction had no rational basis; it had the effect of
10
enabling aliens convicted of more serious crimes to apply for
relief, while withholding that right from aliens, like Cordes, who
committed less serious crimes that only became grounds for
deportation following statutory amendments that retroactively
reduced the minimum prison sentence required to render an alien
deportable. Id. at 897.
Brieva, on the other hand, is removable based on the law
in effect at the time he entered his plea;5 crimes of violence have
been categorized as aggravated felonies since 1990. Moreover, he
was ineligible for § 212(c) relief under the law then in effect,
not as the result of the statute’s repeal in 1996. He cannot
establish that he is being treated differently from other similarly
situated aliens, and his equal protection claim fails.
III. CONCLUSION
For the reasons addressed above, Brieva is deportable for
having committed an aggravated felony and is not eligible for a
section 212(c) waiver. His petition for review must be DENIED.
5
This fact also distinguishes Brieva from the petitioner in Zalawadia
v. Ashcroft, 371 F.3d 292, 298 (5th Cir. 2004).
11