Brieva-Perez v. Gonzales

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

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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

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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