OLIVARES

Cite as 23 I&N Dec. 148 (BIA 2001) Interim Decision #3453

In re Juan OLIVARES-Martinez, Respondent

File A91 376 899 - Harlingen

Decided July 3, 2001

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Under United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), and United States

v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001), a Texas conviction for felony DWI is

not classifiable as a crime of violence conviction under 18 U.S.C. § 16(b) (1994) for

purposes of removability in cases arising in the United States Court of Appeals for the Fifth

Circuit; accordingly, in cases arising in the Fifth Circuit, Matter of Puente, Interim Decision

3412 (BIA 1999), will not be applied.

FOR RESPONDENT: Thelma O. Garcia, Esquire, Harlingen, Texas

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Cheri L. Jones,

Assistant District Counsel

BEFORE: Board En Banc: SCIALABBA, Acting Chairman; SCHMIDT, HOLMES,

HURWITZ, VILLAGELIU, FILPPU, GUENDELSBERGER, MATHON,

ROSENBERG, GRANT, MILLER, BRENNAN, ESPENOZA, OSUNA, and

OHLSON, Board Members. Concurring Opinion: DUNNE, Vice Chairman;

joined by MOSCATO, Board Member. Concurring and Dissenting Opinion:

COLE, Board Member, joined by JONES, Board Member.1

ESPENOZA, Board Member:

In a decision dated May 13, 1999, an Immigration Judge found the respondent

removable and ineligible for relief and ordered him removed from the United

States. The respondent filed a timely appeal. The appeal will be sustained, and

the removal proceedings will be terminated. The request for oral argument is

denied.

I. BACKGROUND

The respondent is a native and citizen of Mexico who entered the United

States prior to January 1, 1982, and became a lawful permanent resident on

May 9, 1991. In a Notice to Appear (Form I-862) dated August 12, 1998, the

1

Board Member Michael J. Heilman participated in the deliberations concerning this case,

but retired prior to the issuance of the final decision.

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respondent was charged with removability under section 237(a)(2)(A)(iii) of the

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. V 1999),

as an alien convicted of an aggravated felony as defined in section 101(a)(43)(F)

of the Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. V 1999) (crime of violence for

which the term of imprisonment is at least 1 year). The respondent was

convicted on May 29, 1996, in the 103d Judicial District Court of Cameron

County, Texas, of the felony offense of driving a motor vehicle while

intoxicated (“DWI”) with two prior convictions. His sentence for this offense,

5 years of incarceration, was suspended, and he was placed on probation for

5 years. At the hearing, the parties agreed that the respondent had been

convicted under sections 49.04 and 49.09 of the Texas Penal Code.2

The Immigration Judge found that the respondent’s conviction was for a crime

of violence as defined by 18 U.S.C. § 16(b) (1994), and that the crime therefore

fit the aggravated felony definition at section 101(a)(43)(F) of the Act. He

accordingly concluded that the respondent was removable as charged. The

Immigration Judge also found the respondent ineligible for relief from removal

and ordered him removed from the United States. The respondent appealed

from that decision. The Immigration and Naturalization Service submitted a

memorandum in support of the decision of the Immigration Judge.

Subsequently, in Matter of Puente, Interim Decision 3412 (BIA 1999), we

held that a conviction for Texas felony DWI was a “crime of violence” as

defined in 18 U.S.C. § 16(b). We reasoned that the nature of the crime of

operating a motor vehicle while intoxicated may create a substantial risk that

physical force will be applied. The United States Court of Appeals for the Fifth

Circuit initially affirmed the Board’s reasoning in Camacho-Marroquin v. INS,

188 F.3d 649 (5th Cir. 1999). However, the Fifth Circuit withdrew that

decision in Camacho-Marroquin v. INS, 222 F.3d 1040 (5th Cir. 2000).

II. DECISION OF THE BOARD

The issue before us is whether a conviction for Texas felony DWI is a

conviction for a crime of violence under 18 U.S.C. § 16(b), rendering an alien

removable under the aggravated felony ground. As explained above, the Board

has spoken on the matter. See Matter of Puente, supra; accord Tapia-Garcia

v. INS, 237 F.3d 1216 (10th Cir. 2001) (holding that an Idaho felony DWI

convi ction is an aggravated felony conviction for immigration purposes).

However, we evaluate the respondent’s removability under recent decisions

issued by the Fifth Circuit, the controlling federal jurisdiction in this case. The

Board historically follows a court’s precedent in cases arising in that circuit.

See Matter of Anselmo, 20 I&N Dec. 25, 31 (BIA 1989).

2

Hereinafter, we refer to a violation of sections 49.04 and 49.09(b) as a “Texas felony

DWI.”

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In United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001),3 the court

addressed the question whether the defendant’s conviction for Texas felony

DWI was an aggravated felony conviction for sentence enhancement purposes

under section 2L1.2 of the United States Sentencing Guidelines. See

18 U.S.C.A. ch. 2, § 2L1.2 (West 1996). The specific question was whether the

defendant’s conviction was for a crime of violence as defined in 18 U.S.C.

§ 16(b).

The Fifth Circuit pointed out that 18 U.S.C. § 16(b) focuses on the

defendant’s conduct itself and required that “there be a substantial risk that the

defendant will use physical force against another’s person or property in the

course of committing the offense.” United States v. Chapa-Garza, supra, at

925. The court concluded that a violation of the Texas felony DWI statute is not

a crime of violence under 18 U.S.C. § 16(b). Id. at 928.

The outstanding question is what effect the sentence enhancement decision

in United States v. Chapa-Garza, supra, has on immigration proceedings.4

While we were deliberating about this matter, the Fifth Circuit issued United

States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001). In that case, the

court specifically rejected the concept of interpreting a federal statute

differently in immigration and sentence enhancement cases.5

In United States v. Hernandez-Avalos, the Fifth Circuit has determined that

uniformity should be employed when the same federal statute is being

interpreted, notwithstanding its application in different contexts. The Fifth

Circuit has also stated that it does not find that a Texas felony DWI is a crime

of violence as defined in 18 U.S.C. § 16(b). United States v. Chapa-Garza,

supra. The result of these decisions is that in cases arising in the Fifth Circuit,

a conviction for Texas felony DWI is not classifiable as a crime of violence

conviction under 18 U.S.C. § 16(b) for purposes of removability. Accordingly,

we will not apply our decision in Matter of Puente, supra, in cases arising

within the jurisdiction of the Fifth Circuit.

The respondent is therefore not removable under section 237(a)(2)(A)(iii)

of the Act. The respondent’s removal proceedings will be terminated.

ORDER: The appeal is sustained, and the removal proceedings are

terminated.

3

There is a petition for rehearing with suggestion for en banc consideration pending in this

case as of the date of the instant decision. The mere filing of that rehearing petition does not

alter the precedential effect of the court’s ruling. However, we recognize that “unless

otherwise expressly provided,” the granting of a petition en banc vacates a panel opinion.

See 5th Cir. R. 41.3. Any subsequent developments in the law will be addressed when

necessary.

4

We declared our intent to address that issue in Matter of Herrera, 23 I&N Dec. 43 (BIA

2001).

5

We recognize that United States v. Hernandez-Avalos, supra, conflicts with our decision

in Matter of K-V-D-, Interim Decision 3422 (BIA 1999). We do not revisit Matter of

K-V-D-, supra, at this time.

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CONCURRING OPINION: Mary Maguire Dunne, Vice Chairman; in

which Anthony C. Moscato, Board Member, joined

I respectfully concur.

I agree with the result reached by the majority in this case. However, I think

it unwise to publish a precedent decision while the United States Court of

Appeals for the Fifth Circuit is considering the Attorney General’s petition for

a rehearing in United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), and

without addressing the significant issue regarding uniformity raised by the

decision in United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001).

While this Board stated in Matter of Herrera, 23 I&N Dec. 43 (BIA 2001), that

it would consider the effect of Chapa-Garza on our decision in Matter of

Puente, Interim Decision 3412 (BIA 1999), there have been two intervening

factors which I believe should cause us to move slowly and carefully in this area.

One is the petition for a rehearing in Chapa-Garza, because if that petition is

granted, the Fifth Circuit’s decision in Chapa-Garza is vacated and Puente

remains the controlling precedent in the Fifth Circuit. I am not convinced that

a precedent is needed prior to the resolution of that rehearing petition,

especially since this Board has undertaken to adjudicate all pending detained

cases arising in the Fifth Circuit where the outcome is determined by the recent

Fifth Circuit decisions. The other factor is the Hernandez-Avalos decision

with its significant impact on this Board’s decision in Matter of K-V-D-, Interim

Decision 3422 (BIA 1999). By failing to address the more significant issue of

uniformity, we leave unresolved a number of issues and, consequently, provide

minimal guidance with respect to those important issues.

CONCURRING OPINION: Patricia A. Cole, Board Member, in which

Philemina McNeill Jones, Board Member, joined

I respectfully concur.

Although I concur in the result reached by the majority, I would not yet issue

another precedent decision in a Texas driving while intoxicated (“DWI”) case

without addressing our precedent decisions that have been impacted by recent

decisions of the United States Court of Appeals for the Fifth Circuit.

The stay that was issued in Matter of Herrera, 23 I&N Dec. 43 (BIA 2001),

was not “to resolve” but rather to consider the effect of a sentencing

enhancement decision in immigration proceedings. The decision at issue was

United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), which holds that

a conviction for DWI in violation of section 49.09 of the Texas Penal Code is

not a conviction for a crime of violence and therefore not an aggravated felony

conviction. This decision was rendered in the context of the United States

Sentencing Guidelines. In Matter of Herrera, we stated that we would consider

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the effect of the Fifth Circuit’s sentence enhancement decision on Matter of

Puente, Interim Decision 3412 (BIA 1999). Matter of Puente held that a

conviction for DWI in violation of section 49.09 of the Texas Penal Code is a

conviction for a crime of violence and an aggravated felony for immigration

purposes. The decision in Chapa-Garza is contrary to this finding, as well as

to Matter of Magallanes, Interim Decision 3341 (BIA 1998), and Tapia-

Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001). The majority acknowledges

that a petition for rehearing is pending in United States v. Chapa-Garza and

notes the possibility of future decisions on this subject matter. Nonetheless,

a precedent is being issued to basically state that our precedents outside the

Fifth Circuit will be addressed “when necessary.”

Similarly, the majority also recognizes the conflict between the Fifth

Circuit’s decision in United States v. Hernandez-Avalos, 251 F.3d 505 (5th

Cir. 2001), and our holding in Matter of K-V-D-, Interim Decision 3422 (BIA

1999). In Hernandez-Avalos, the court held, contrary to our decision in Matter

of K-V-D-, that there should be uniformity in interpreting the term “aggravated

felony” for sentence enhancement and immigration purposes. What this

precedent being issued today states is that it will not revisit “at this time” the

issue whether a federal statute should be interpreted differently in immigration

and sentence enhancement cases outside the Fifth Circuit.

Because all cases arising in the Fifth Circuit are controlled by that court’s

recent precedent opinions, another precedent is unnecessary until decisions are

rendered on the issue of felony DWIs as crimes of violence, and on the issue

whether a federal statute should be interpreted differently in immigration and

sentence enhancement cases. There is no guidance or value in issuing a

precedent decision at this time and, consequently, I will not join my colleagues.

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