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No. 06-1415

 

In the Supreme Court of the United States

JESUS DE LA PAZ SANCHEZ, PETITIONER

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

 

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
DONALD E. KEENER
JENNIFER PAISNER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether unauthorized use of a motor vehicle, in vio lation of Tex. Penal Code § 31.07 (West 1992), is a "crime of violence" under 18 U.S.C. 16(b).

 

 

In the Supreme Court of the United States

No. 06-1415

JESUS DE LA PAZ SANCHEZ, PETITIONER

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 6a-7a) is reported at 473 F.3d 133. The most recent decisions of the Board of Immigration Appeals (App., infra, 1a-2a) and the immigration judge (Pet. App. 1a-4a) are unre ported. A prior order of the court of appeals (App., in fra, 3a-4a) is unreported. Prior decisions of the Board of Immigration Appeals (Pet. App. 5a; App., infra, 5a-6a, 7a-9a) and the immigration judge (App., infra, 10a-16a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on November 15, 2006. The petition for a writ of certiorari was filed on February 13, 2007. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner is a native and citizen of Mexico. In July 1985, he was admitted to the United States as an immigrant. In November 1992, he committed the of fense of unauthorized use of a motor vehicle, in violation of Tex. Penal Code § 31.07 (West 1992). In May 1996, he was convicted of that offense and sentenced to one year in jail. Admin. R. 286; Pet. App. 2a; App., infra, 11a, 14a.

The Immigration and Naturalization Service (INS) subsequently commenced removal proceedings against petitioner. Admin. R. 286.1 As relevant here, the INS alleged that petitioner was removable pursuant to 8 U.S.C. 1227(a)(2)(A)(iii), because the offense of unautho rized use of a motor vehicle was a "crime of violence" under 18 U.S.C. 16 for which the prison term was at least one year, and the offense was therefore an "aggra vated felony" under 8 U.S.C. 1101(a)(43)(F). Admin. R. 286. Under 18 U.S.C. 16(b), the provision at issue here, the term "crime of violence" means "any * * * offense that is a felony and that, by its nature, involves a sub stantial risk that physical force against the person or property of another may be used in the course of com mitting the offense."

2. The immigration judge (IJ) held that, under Fifth Circuit precedent, "unauthorized use of a [motor] vehi cle [i]s a crime of violence and an aggravated felony." App., infra, 14a. The IJ therefore ruled that petitioner was removable on that ground (as well as on the basis of another prior conviction). Id. at 11a-14a. The IJ also determined that petitioner was ineligible for various forms of relief and ordered him removed to Mexico. Id. at 14a-16a.

The Board of Immigration Appeals (BIA) agreed with the IJ that unauthorized use of a motor vehicle is a "crime of violence" and (because petitioner received a one-year jail term) an aggravated felony. App., infra, 8a (citing United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir.), cert. denied, 528 U.S. 837 (1999)). The BIA also agreed with the IJ that petitioner was ineligible for relief, and therefore dismissed petitioner's appeal (except insofar as it held that the IJ erred in finding that petitioner was removable on the basis of the other prior conviction). Id. at 7a-9a. The BIA subsequently granted petitioner's motion to reconsider, however, and remanded the case to the IJ. Id. at 5a-6a. The BIA held that, contrary to its initial decision, the record demon strated that petitioner had pleaded guilty to unautho rized use of a motor vehicle (rather than having been found guilty of that offense at trial), and that petitioner might therefore be eligible for a waiver of inadmissibil ity under former Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c) (1994) (repealed 1996), as a result of this Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001). App., infra, 5a-6a.

On remand, the IJ found that petitioner was ineligi ble for a waiver of inadmissibility because there is no parallel ground of exclusion for the offense of unautho rized use of a motor vehicle. Pet. App. 1a-4a. The BIA agreed with the IJ and dismissed petitioner's appeal. Id. at 5a. After the court of appeals remanded the case on joint motion of the parties, App., infra, 3a-4a, the BIA "f[ou]nd no reason to disturb [its] previous decision to find [petitioner] removable as charged and ineligible for a waiver of inadmissibility," id. at 2a. The BIA therefore dismissed petitioner's appeal. Id. at 1a-2a.

3. The court of appeals denied petitioner's petition for review. Pet. App. 6a-7a. It rejected petitioner's con tention that the Texas offense of unauthorized use of a motor vehicle is not a "crime of violence" under 18 U.S.C. 16(b), finding the claim foreclosed by its decision in Galvan-Rodriguez, supra. Pet. App. 7a. The court also rejected petitioner's contention that he was eligible for a waiver of inadmissibility. Ibid.2

ARGUMENT

Petitioner renews his contention (Pet. 3-4) that the Texas offense of unauthorized use of a motor vehicle is not a "crime of violence" under 18 U.S.C. 16(b). The IJ, BIA, and court of appeals all correctly rejected that con tention, and further review is unwarranted.

A person commits the offense of unauthorized use of a motor vehicle if he "intentionally or knowingly oper ates another's * * * motor-propelled vehicle without the effective consent of the owner." Tex. Penal Code § 31.07(a) (West 1992). At the time petitioner committed that offense, it was a "felony of the third degree," id. § 31.07(b); at the time he was sentenced, it was a "state jail felony," id. § 31.07(b) (1995).3 An offense is a "crime of violence" under 18 U.S.C. 16(b) if it is "a felony" 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." Peti tioner does not dispute that the Texas offense of unau thorized use of a motor vehicle is a felony. But he ar gues that the offense "does not involve a substantial risk of physical force against the property of another in the commission of a felony." Pet. 3. That argument lacks merit and does not warrant review by this Court.

In United States v. Galvan-Rodriguez, 169 F.3d 217, cert. denied, 528 U.S. 837 (1999), the decision on which it relied here, the Fifth Circuit correctly held that the unauthorized use of a motor vehicle involves a substan tial risk of the use of physical force against the property of another because the offense "carries a substantial risk that the vehicle might be broken into, 'stripped,' or van dalized." Id. at 219. Contrary to petitioner's assertion (Pet. 3-4), Galvan-Rodriguez is consistent with this Court's subsequent decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), which held that the use of physical force contemplated by 18 U.S.C. 16(b) "requir[es] a higher mens rea than * * * merely accidental or negligent conduct," 543 U.S. at 11. Since Galvan-Rodriguez relied on the risk that the vehicle would be broken into, "stripped," or vandalized, and since such conduct is in tentional, not accidental or negligent, Galvan-Rodriguez is "fully consistent" with Leocal, as the Fifth Circuit has recently held. Brieva-Perez v. Gonzales, 482 F.3d 356, 361 (5th Cir. 2007). Petitioner cites no decision of any court of appeals-either before Leocal or after-holding that unauthorized use of a motor vehicle is not a "crime of violence" under 18 U.S.C. 16(b), and we are not aware of any.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
DONALD E. KEENER
JENNIFER PAISNER
Attorneys

JULY 2007

 

 

1 The INS's immigration-enforcement functions have since been transferred to United States Immigration and Customs Enforcement in the Department of Homeland Security. See 6 U.S.C. 251 (Supp. IV 2004).

2 Petitioner does not seek review of the court of appeals' holding that he is ineligible for a waiver of inadmissibility.

3 A felony of the third degree was punishable by between two and ten years in "the institutional division of the Texas Department of Criminal Justice" or by a maximum of one year in "a community correctional facility." Tex. Penal Code § 12.34(a) (West 1992). A state jail felony was punishable by between 180 days and two years in "a state jail." Id. § 12.35(a) (1995).