IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-60757
_______________
RICARDO LOPEZ-ELIAS,
Petitioner,
VERSUS
JANET RENO,
ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
May 1, 2000
Before SMITH, BARKSDALE, and offense, a burglary offense, or a crime of vio-
PARKER, Circuit Judges. lenceSSany of which alone would be sufficient
to deny this court jurisdiction to review a final
JERRY E. SMITH, Circuit Judge: order of removal by the Immigration and Nat-
uralization Service (“INS”) and to authorize
This case requires the court once again to removal.
construe the criminal alien removal provisions
of the Illegal Immigration Reform and Because burglary of a vehicle with intent to
Immigrant Responsibility Act of 1996, Pub. L. commit theft is a crime of violence (though
No. 104-208, 110 Stat. 3009-546 (“IIRIRA”). neither a burglary nor a theft), the IIRIRA
Specifically, we must determine whether a deprives us of jurisdiction over this petition.
Texas conviction of burglary of a vehicle with We therefore grant the motion to dismiss.
the intent to commit theft constitutes a theft
I. 1227(a)(2)(A)(iii). The term “aggravated
In 1985, Ricardo Lopez-Elias was convict- felony” includes “(F) a crime of violence (as
ed in Texas state court of burglary of a vehicle defined in section 16 of Title 18,2 but not
with the intent to commit theft, in violation of including a purely political offense) for which
TEX. PENAL CODE ANN. § 30.04(a) (West the term of imprisonment [is] at least one
1987), and sentenced to four years’ year” and “(G) a theft offense (including
imprisonment, suspended. In 1998, the INS receipt of stolen property) or burglary offense
served him with a notice to appear, charging for which the term of imprisonment [is] at least
him with being subject to removal as an one year.” § 1101(a)(43) (emphasis added).
aggravated felon, and in April 1999 an IIRIRA further provides that, “[n]otwithstand-
immigration judge ordered his removal. The ing any other provision of law, no court shall
Board of Immigration Appeals (“BIA”) have jurisdiction to review any final order of
dismissed Lopez-Elias's appeal in October removal against an alien who is removable by
1999, concluding that he had committed a reason of having committed” an aggravated
theft offense, an aggravated felony under felony. § 1252(a)(2)(C).
IIRIRA. See 8 U.S.C. § 1101(a)(43)(G).
We have jurisdiction to review jurisdictional
Lopez-Elias filed a petition for direct facts.3 That Lopez-Elias’s four-year sentence
review in this court on November 3, 1999, was suspended is of no significance, for
pursuant to 8 U.S.C. § 1252, arguing that he IIRIRA makes plain that “[a]ny reference to a
had not committed an aggravated felony, and
alternatively claiming that the IIRIRA was an
unconstitutionally retroactive law in violation 2
“The term ‘crime of violence’ meansSS
of his right to due process. The INS now
moves for dismissal of the petition on the
(a) an offense that has as an element
ground that under the permanent provisions of the use, attempted use, or threatened use of
IIRIRA, see 8 U.S.C. § 1252(a)(2)(C),1 we physical force against the person or property
lack jurisdiction over removal orders issued of another, or
against criminal aliens.
(b) any other offense that is a felony
II. and that, by its nature, involves a substantial
We begin by examining the relevant risk that physical force against the person or
provisions of federal immigration law as property of another may be used in the
amended by IIRIRA. “Any alien who is course of committing the offense.”
convicted of an aggravated felony at any time
after admission is deportable.” 8 U.S.C. § 18 U.S.C. § 16.
3
See Camacho-Marroquin v. INS, 188 F.3d
649, 651 (5th Cir. 1999) (“The prerequisites for
1
Because the proceedings against Lopez-Elias review preclusion under INA § 242(a)(2)(C) are:
were commenced after April 1, 1997, the (i) an alien; (ii) deportable; (iii) for committing a
permanent provisions of IIRIRA are in force. See crime covered in INA § 237(a)(2)(A)(iii). This
Requena-Rodriguez v. Pasquarell, 190 F.3d 299, Court has jurisdiction to determine whether these
302-03 (5th Cir. 1999); IIRIRA § 309(c)(1), (4), prerequisites for precluding review have been
110 Stat. 3009-625, -626. met.”).
2
term of imprisonment or a sentence with re- Reviewing the matter de novo, we
spect to an offense is deemed to include the nevertheless conclude that we have no
period of incarceration or confinement ordered jurisdiction under IIRIRA, because Lopez-
by a court of law regardless of any suspension Elias was convicted of a crime of violence
of the imposition or execution of that under § 1101(a)(43)(F). First, however, we
imprisonment or sentence in whole or in part.” articulate why he was not convicted of a theft
§ 1101(a)(48)(B). Nor does Lopez-Elias dis- or burglary offense under § 1101(a)(43)(G).
pute that he is in fact an alien. The only
jurisdictional question, therefore, is whether he A.
was convicted of an aggravated felonySSthat To determine whether an alien has
is, whether burglary of a vehicle with intent to committed an aggravated felony, courts look
commit theft constitutes a crime of violence, a to the text of the statute violated, not the
theft offense, a burglary offense, or none of the underlying factual circumstances.5 According
above. to the statute under which Lopez-Elias was
convicted, “[a] person commits an offense if,
The INS claims that its conclusion that without the effective consent of the owner, he
Lopez-Elias committed an “aggravated felony” breaks into or enters a vehicle or any part of a
is worthy of the familiar principles of vehicle with intent to commit any felony or
deference to administrative agencies an- theft.” TEX. PENAL CODE ANN. § 30.04(a)
nounced in Chevron U.S.A., Inc. v. Natural (West 1987).6
Resources Defense Council, Inc., 467 U.S.
837, 842-44 (1984).4 Even assuming the
ambiguity of the statutory terms of IIRIRA,
however, the fact that courts defer to the 5
See Camacho-Marroquin, 188 F.3d at 652;
INS’s construction of its statutory powers of
cf. Taylor v. United States, 495 U.S. 575, 600
deportation does not mean that similar (1990); United States v. Lomas, 30 F.3d 1191,
deference is warranted with respect to the 1193 (9th Cir. 1994).
enforcement of this court’s jurisdictional
limitations. The former may trigger deference, 6
At the time of Lopez-Elias’s conviction, Texas
but the determination of our jurisdiction is law classified the offense as a third-degree felony.
exclusively for the court to decide. This See TEX. PENAL CODE ANN. § 30.04(c) (West
distinction is particularly important here, 1987). In 1993, the statute was amended to treat
where the petitioner challenges not only the the offense as a Class A misdemeanor. See TEX.
INS’s statutory construction of its agency PENAL CODE ANN. § 30.04(c) (West 1994); see
powers, but also the constitutionality of those also TEX. PENAL CODE ANN. § 30.04(d) (West
powers. 1999). How Texas characterizes the offense does
not control federal immigration law, however, for
federal law looks only to the term of imprisonment,
and not state law, to ascertain whether the offense
is a “felony.” See § 1101(a)(43)(G); cf. Moosa v.
4
See also Food & Drug Admin. v. Brown & INS, 171 F.3d 994, 1006 (5th Cir. 1999) (stating
Williamson Tobacco Corp., 120 S. Ct. 1291 that “[t]he immigration laws contain no . . .
(2000); INS v. Cardoza-Fonseca, 480 U.S. 421, indication that they are to be interpreted in
448-49 (1987); INS v. Aguirre-Aguirre, 526 U.S. accordance with state law”) (quoting United States
415, 424-25 (1999). v. Campbell, 167 F.3d 94, 98 (2d Cir. 1999)).
3
Lopez-Elias was specifically charged with dwelling, or done so at night, or done so with
burglary of a vehicle with intent to commit intent to commit a felony (as opposed to a les-
theft. Notably, however, his conviction did ser offense), to satisfy the generic definition of
not require a finding that he had actually com- “burglary.” Id. at 593. Nor must the act have
mitted theft; mere intent to commit was presented a risk of physical injury to another
sufficient. Lopez-Elias therefore did not person. Id. at 596-98.
commit a “theft offense” for purposes of the
IIRIRA.7 The Court did distinguish, however,
between burglary of “a building or other
Nor did he commit a burglary offense. structure” on the one hand, id. at 598-99, and
When Congress deploys the term “burglary” burglary of a vehicle on the other, id. at 599,
without specifying a definition, a generic un- ultimately concluding that the generic term of
derstanding of the word based on the modern “burglary” embraced only the former, and not
usage of the states, rather than the common the latter.8 Because Lopez-Elias was
law definition, should be used. As the convicted of burglary of a vehicle, not a
Supreme Court has explained, building, he did not commit a “burglary” for
purposes of IIRIRA, and the INS therefore
[w]e believe that Congress meant by was not authorized to remove him by reason
“burglary” the generic sense in which of his commission of a burglary offense.
the term is now used in the criminal
codes of most States. . . . Although the B.
exact formulations vary, the generic, This court has previously recognized, how-
contemporary meaning of burglary ever, that burglary of a vehicle does constitute
contains at least the following elements: a “crime of violence,” justifying deportation
an unlawful or unprivileged entry into, under § 1101(a)(43)(F).9 It is true that the
or remaining in, a building or other INS did not actually pursue removal
structure, with intent to commit a crime.
Taylor v. United States, 495 U.S. 575, 598 8
See Taylor, 495 U.S. at 602 (“For example, in
(1990). a State whose burglary statutes include entry of an
automobile as well as a building, if the indictment
Thus, an alien need not have broken into a or information and jury instructions show that the
defendant was charged only with a burglary of a
building, and that the jury necessarily had to find
7
In addition to listing certain offenses such as an entry of a building to convict, then the
theft as “aggravated felonies” triggering Government should be allowed to use the
deportation, IIRIRA provides that merely “an conviction.”).
attempt or conspiracy to commit” an enumerated
9
offense is deemed a deportable offense. See United States v. Delgado-Enriquez,
§ 1101(a)(43)(U). The INS does not raise the 188 F.3d 592, 595 (5th Cir. 1999) (noting that
argument, but we believe Elias could have been re- burglary of a vehicle is a crime of violence under
movedSSand our jurisdiction could have been 18 U.S.C. § 16(b)); United States v. Ramos-
precludedSSbased alternatively on the theory that Garcia, 95 F.3d 369, 371 (5th Cir. 1996) (same);
burglary of a vehicle with intent to commit theft is United States v. Rodriguez-Guzman, 56 F.3d 18,
tantamount to an offense of attempted theft. 20 (5th Cir. 1995) (same).
4
proceedings on this ground.10 That the INS III.
proceeded on grounds of theft or burglary, Federal courts derive their power to
rather than crime of violence, however, does adjudicate from Congress, and not from the
not alter the conclusion that this court has no Constitution alone. The permanent provisions
jurisdiction because of Lopez-Elias’s of IIRIRA therefore require that this petition
conviction of a crime of violence. for review be dismissed for want of
jurisdiction.12 Accordingly, the motion to
dismiss the petition for review is
IIRIRA states simply that “no court shall
have jurisdiction to review any final order of
removal against an alien who is removable by
reason of having committed” an aggravated
felony. 18 U.S.C. § 1252(a)(2)(C) (emphasis 11
(...continued)
added). What the INS originally charged is of AEDPA, a statutory section solely concerned with
no consequence; so long as the alien in fact is final orders of deportation. The section therefore
removable for committing an aggravated fel- applies, by its very terms, only to aliens who have
ony, this court has no jurisdiction, irrespective actually been adjudged deportable. It is therefore
of whether the INS originally sought removal highly doubtful that, in that context, Congress
for that reason.11 meant ‘deportable by reason of’ to mean, as the
INS would have it, ‘potentially susceptible to being
deported by reason of . . . .’”); Xiong v. INS, 173
10
Lopez-Elias’s original notice to appear F.3d 601, 608 (7th Cir. 1999) (same).
charged him with the prior commission of a crime
12
of violence, but the INS subsequently amended its Even if we are required to address Lopez-
charge to theft or burglary. For this reason, the Elias's constitutional claim on the merits
BIA expressly rejected the use of the crime-of- notwithstanding IIRIRA’s express preclusion of
violence provision to justify removal. jurisdiction, see Max-George, 205F.3d 194, 199-
200 (5th Cir. 2000) (stating that “courts faced with
11
See Abdel-Razek v. INS, 114 F.3d 831, 832 petitions for review from criminal aliens must
(9th Cir. 1997) (“The fact that the BIA did not determine whether the particular provisions
issue its order with reference to that section does classifying the petitioner under the jurisdiction-
not alter petitioner’s status as a convicted felon for stripping provision . . . are being constitutionally
purposes of the availability of judicial review. We applied”), the claim that IIRIRA is
therefore lack jurisdiction.”). We note, however, unconstitutionally retroactive has been rejected by
that other circuits have held differently. See this court on numerous occasions. See id. at 200
Choeum v. INS, 129 F.3d 29, 38 (1st Cir. 1997) (“Congress has the power to make an alien’s past
(“The INS’s argument is essentially a linguistic criminal conduct subject to present or future
one. According to the INS, for purposes of deportation notwithstanding the fact that the alien
jurisdiction, aliens ‘deportable by reason of’ having could not have been deported for the act at the time
committed firearms offenses are not only those it was committed.”); Moosa, 171 F.3d at 1009
aliens who have been ordered deported for firearms (opining that “it is well settled that Congress has
offenses, but also those aliens who could be the authority to make past criminal activity a new
deported for that reason. As a matter of statutory ground for deportation.”) (quoting Ignacio v. INS,
construction, that argument is somewhat illogical: 955 F.2d 295, 298 (5th Cir. 1992)); see also
The contested phrase comes from Section 440(a) of Lehmann v. United States ex rel. Carson,
(continued...) 353 U.S. 685, 690 (1957).
5
GRANTED.13
13
The INS’s motion for leave to file in excess
pages the motion to dismiss the petition for review
and to extend the time for filing the administrative
record is GRANTED. The INS’s motion to extend
the time for filing the administrative record is
DENIED as unnecessary.
6