Fernando Escudero-Arciniega v. Eric Holder, Jr.

Case: 11-60837 Document: 00512080635 Page: 1 Date Filed: 12/11/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 11, 2012

No. 11-60837 Lyle W. Cayce

Clerk

FERNANDO ESCUDERO-ARCINIEGA

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.

PER CURIAM:

This case arises from a finding that a lawful permanent resident of the

United States’ conviction of burglary of a vehicle under New Mexico’s burglary

statute rendered him removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for

committing a crime of violence. The petitioner seeks review of this finding, and

further seeks review of the denial of his application for asylum, for withholding

of removal, and for protection under the Convention Against Torture. The issue

of whether burglary under the New Mexico statute necessarily constitutes a

crime of violence is one of first impression in this Circuit. We conclude that it

does, and accordingly deny relief as to this claim. Because we do not have

jurisdiction over the petitioner’s remaining claims, we dismiss them.

Case: 11-60837 Document: 00512080635 Page: 2 Date Filed: 12/11/2012

No. 11-60837

I.

Fernando Escudero-Arciniega (“Escudero”) is a native and citizen of

Mexico and a lawful permanent resident of the United States. In 2006, Escudero

pled guilty to burglary of a vehicle under New Mexico Statute § 30-16-03(B) and

to larceny under § 30-16-01. Following numerous probation violations, the court

revoked Escudero’s probation and sentenced him to five years of imprisonment.

In 2010, the Department of Homeland Security served Escudero with a

Notice to Appear, charging him with removability pursuant to 8 U.S.C. §

1227(a)(2)(A)(iii) on the basis of both his burglary and larceny convictions. The

Immigration Judge (“IJ”) found Escudero was indeed removable under §

1227(a)(2)(A)(iii) based on his burglary conviction, for having committed an

aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(F). This provision defines

an aggravated felony as, inter alia, a “crime of violence.” The IJ found burglary

of a vehicle under the New Mexico statute met this definition, as it involved “the

serious risk that force may be used against a person or property of another

during the commission of the offense.”

Escudero further filed an application for asylum and withholding of

removal and sought protection under the Convention Against Torture (“CAT”).

The IJ first found the nature of Escudero’s conviction rendered him statutorily

barred from asylum or withholding, and further found that Escudero did not

present evidence demonstrating “sufficient state action” to support his CAT

claim. Accordingly, the IJ denied each of these claims.

On appeal to the Board of Immigration Appeals (“BIA”), the BIA dismissed

Escudero’s petition, concluding that his burglary conviction was an aggravated

felony and the IJ properly denied the additional relief Escudero sought. The BIA

agreed that Escudero’s conviction for an aggravated felony precluded him from

eligibility for asylum. The BIA declined to decide whether this conviction also

rendered Escudero statutorily ineligible for withholding, instead relying upon

2

Case: 11-60837 Document: 00512080635 Page: 3 Date Filed: 12/11/2012

No. 11-60837

the IJ’s alternative determination that Escudero failed to satisfy his burden of

proof regarding both the withholding of removal and the CAT claims. Escudero

timely petitioned for review.

II.

Section 1252 governs the jurisdiction of federal courts over immigration

proceedings. “[S]ection 1252(a)(2)(C) generally prohibits judicial review of ‘any

final order of removal against an alien who is removable by reason of having

committed’ certain designated criminal offenses, including an aggravated felony

under § 1101(a)(43)[.]” Larin-Ulloa v. Gonzales, 462 F.3d 456, 460-61 (5th Cir.

2006). Section 1252(a)(2)(D), however, authorizes judicial review of

“constitutional claims or questions of law.” Id. at 461. Whether a predicate

conviction is an “aggravated felony” is a question of law that we review de novo.

Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir. 2005).

Accordingly, we have jurisdiction to review Escudero’s argument that

burglary of a vehicle under the New Mexico statute is not a “crime of violence,”

and thus not an aggravated felony, and we turn to this issue first. Section

1101(a)(43)(F) defines an aggravated felony as “a crime of violence (as defined

in section 16 of Title 18, but not including a purely political offense) for which

the term of imprisonment [is] at least one year.”1 8 U.S.C. § 1101(a)(43)(F). A

“crime of violence” is any offense “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(b). At issue is whether

burglary of a vehicle under the New Mexico statute satisfies these definitions.2

1

It is undisputed that violation of New Mexico’s burglary statute is a felony punishable

by at least one year of imprisonment.

2

“To determine whether an alien has committed an aggravated felony, courts look to

the text of the statute violated, not the underlying factual circumstances.” Lopez-Elias v.

Reno, 209 F.3d 788, 792 (5th Cir. 2000). If, however, an alien pleads guilty under a divisible

statute, at least one provision of which would not qualify as an aggravated felony, courts may

3

Case: 11-60837 Document: 00512080635 Page: 4 Date Filed: 12/11/2012

No. 11-60837

The relevant provision of the New Mexico burglary statute reads:

B. Any person who, without authorization, enters any

vehicle, watercraft, aircraft or other structure, movable or

immovable, with intent to commit any felony or theft therein

is guilty of a fourth degree felony.

N.M. STAT. § 30-16-3(B).

Although we have not previously addressed this particular statute, we

have examined the definition of burglary under Texas Penal Code §

30.04(a)—which imposes a materially identical standard—numerous times. The

Texas statute states: “A person commits an offense if, without the effective

consent of the owner, he breaks into or enters a vehicle or any part of a vehicle

with the intent to commit any felony or theft.” TEX. PEN. CODE § 30.04(a). When

analyzing this statute, this Court has consistently found “burglary of a vehicle

does constitute a ‘crime of violence,’ justifying deportation under §

1101(a)(43)(F).” Lopez-Elias v. Reno, 209 F.3d 788, 792 (5th Cir. 2000) (citing

United States v. Delgado-Enriquez, 188 F.3d 592, 595 (5th Cir. 1999) (holding

burglary of a vehicle is a crime of violence under 18 U.S.C. § 16(b)); United

States v. Ramos-Garcia, 95 F.3d 369, 371 (5th Cir. 1996) (same); United States

v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995), overruled on other grounds

as recognized in United States v. Turner, 305 F.3d 349, 350 (5th Cir. 2002)

(same)); see also Santos v. Reno, 228 F.3d 591, 597 n.13 (5th Cir. 2000) (“Because

burglary of a vehicle involves ‘a substantial risk’ that physical force may be used

against another’s property, it is a ‘crime of violence’ as defined in 18 U.S.C. §

16”); United States v. Paniagua, No. 11-20097, 2012 WL 2849497, at *1 (5th Cir.

July 11, 2012) (unpublished) (“Where . . . an offense is based on the actual

look to additional documents to determine whether his conviction “necessarily” fell under a

particular subsection that does constitute an aggravated felony. Larin-Ulloa v. Gonzales, 462

F.3d 456, 464 (5th Cir. 2006). It is undisputed that Escudero pled guilty to § 30-16-3(B) of the

New Mexico Statute.

4

Case: 11-60837 Document: 00512080635 Page: 5 Date Filed: 12/11/2012

No. 11-60837

commission of a burglary of a motor vehicle, it clearly” “carries the risk described

in § 16(b).”).

Just as there is a “substantial risk that physical force against the person

or property of another may be used in the course of committing the offense”

under the Texas statute, burglary of a vehicle under New Mexico’s statute

entails a significant likelihood that force will be used against another’s property.

18 U.S.C. § 16(b). Each statute requires that the criminal lack authorization to

enter the vehicle—a requirement alone which will most often ensure some force

is used—and that he intend to commit a felony inside. It is difficult to conceive

of any principled, significant distinction between the requirements of each

statute, and Escudero has made no attempt to articulate one. We will, therefore,

follow our precedent3 and find that burglary of a vehicle under the New Mexico

statute constitutes a crime of violence, as the requirements this statute

establishes are indistinguishable from those the Texas statute sets forth. French

v. Allstate Indem. Co., 637 F.3d 571, 589 (5th Cir.) (under our rule of orderliness,

we are bound to follow prior precedent absent an intervening change in the law),

cert. denied, 132 S. Ct. 420 (2011). Accordingly, we conclude that the BIA did not

err in finding that Escudero’s burglary conviction constituted an aggravated

felony, and we deny Escudero’s petition for review as to this ground.

III.

Finally, we address Escudero’s claims regarding his application for

asylum, withholding of removal, and protection under the CAT. We conclude

3

On appeal, Escudero does not reurge his argument that the Supreme Court’s decision

in Leocal v. Ashcroft, 543 U.S. 1, 7 (2004), somehow alters the analysis here. In Leocal, the

Court determined that “driving under the influence” is not a crime of violence. Id. at 4.

However, it did not undo prior jurisprudence regarding burglary offenses. To the contrary, in

discussing residential burglaries, it noted that “burglary, by its nature involves a substantial

risk that the burglar will use force against a victim in completing the crime.” Id. at 10.

5

Case: 11-60837 Document: 00512080635 Page: 6 Date Filed: 12/11/2012

No. 11-60837

that the BIA correctly determined that Escudero was statutorily precluded from

receiving asylum, because he was indeed convicted of an aggravated felony

under § 1101(a)(43)(F).4 8 U.S.C. § 1158(a)(2)(B)(i). Because we uphold this

determination, we lack jurisdiction to review any of Escudero’s remaining

claims. 8 U.S.C. § 1252(a)(2)(C). None relates to a legal or constitutional issue.

Aside from his arguments regarding the aggravated felony conviction, Escudero

asserts only factual issues on appeal, contending that he met his burden of proof

before the IJ. Because we do not have jurisdiction to review factual

determinations made pursuant to removal orders based upon an aggravated

felony, we dismiss Escudero’s petition for review of the BIA’s denial of asylum,

withholding, and protection under the CAT.

DENIED in part; DISMISSED in part.5

4

Because of this finding, Escudero’s argument that he is not removable because the IJ

found he did not commit an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) is of no

consequence. The IJ did properly find Escudero committed an aggravated felony under §

1101(a)(43)(F).

5

Judge Benavides concurs in the result because as stated in the court’s opinion there

is no principled, significant distinction between the burglary of vehicle statute in question and

the Texas burglary of vehicle statute; accordingly, the panel is bound by our prior precedent.

6