Lopez-Elias v. Reno

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
PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
This case requires the court once again to
construe the criminal alien removal provisions
of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009-546 (“IIRIRA”).
Specifically, we must determine whether a
Texas conviction of burglary of a vehicle with
the intent to commit theft constitutes a theft
offense, a burglary offense, or a crime of vio-
lenceSSany of which alone would be sufficient
to deny this court jurisdiction to review a final
order of removal by the Immigration and Nat-
uralization Service (“INS”) and to authorize
removal.
Because burglary of a vehicle with intent to
commit theft is a crime of violence (though
neither a burglary nor a theft), the IIRIRA
deprives us of jurisdiction over this petition.
We therefore grant the motion to dismiss.

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I.
In 1985, Ricardo Lopez-Elias was convict-
ed in Texas state court of burglary of a vehicle
with the intent to commit theft, in violation of
TEX. PENAL CODE ANN. § 30.04(a) (West
1987), and sentenced to four years’
imprisonment, suspended. In 1998, the INS
served him with a notice to appear, charging
him with being subject to removal as an
aggravated felon, and in April 1999 an
immigration judge ordered his removal. The
Board of Immigration Appeals (“BIA”)
dismissed Lopez-Elias's appeal in October
1999, concluding that he had committed a
theft offense, an aggravated felony under
IIRIRA. See 8 U.S.C. § 1101(a)(43)(G).
Lopez-Elias filed a petition for direct
review in this court on November 3, 1999,
pursuant to 8 U.S.C. § 1252, arguing that he
had not committed an aggravated felony, and
alternatively claiming that the IIRIRA was an
unconstitutionally retroactive law in violation
of his right to due process. The INS now
moves for dismissal of the petition on the
ground that under the permanent provisions of
IIRIRA, see 8 U.S.C. § 1252(a)(2)(C),1 we
lack jurisdiction over removal orders issued
against criminal aliens.
II.
We begin by examining the relevant
provisions of federal immigration law as
amended by IIRIRA. “Any alien who is
convicted of an aggravated felony at any time
after admission is deportable.” 8 U.S.C. §
1227(a)(2)(A)(iii). The term “aggravated
felony” includes “(F) a crime of violence (as
defined in section 16 of Title 18,2 but not
including a purely political offense) for which
the term of imprisonment [is] at least one
year” and “(G) a theft offense (including
receipt of stolen property) or burglary offense
for which the term of imprisonment [is] at least
one year.” § 1101(a)(43) (emphasis added).
IIRIRA further provides that, “[n]otwithstand-
ing any other provision of law, 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. § 1252(a)(2)(C).
We have jurisdiction to review jurisdictional
facts.3 That Lopez-Elias’s four-year sentence
was suspended is of no significance, for
IIRIRA makes plain that “[a]ny reference to a
1 Because the proceedings against Lopez-Elias
were commenced after April 1, 1997, the
permanent provisions of IIRIRA are in force. See
Requena-Rodriguez v. Pasquarell, 190 F.3d 299,
302-03 (5th Cir. 1999); IIRIRA § 309(c)(1), (4),
110 Stat. 3009-625, -626.
2 “The term ‘crime of violence’ meansSS
(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.
3 See Camacho-Marroquin v. INS, 188 F.3d
649, 651 (5th Cir. 1999) (“The prerequisites for
review preclusion under INA § 242(a)(2)(C) are:
(i) an alien; (ii) deportable; (iii) for committing a
crime covered in INA § 237(a)(2)(A)(iii). This
Court has jurisdiction to determine whether these
prerequisites for precluding review have been
met.”).

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term of imprisonment or a sentence with re-
spect to an offense is deemed to include the
period of incarceration or confinement ordered
by a court of law regardless of any suspension
of the imposition or execution of that
imprisonment or sentence in whole or in part.”
§ 1101(a)(48)(B). Nor does Lopez-Elias dis-
pute that he is in fact an alien. The only
jurisdictional question, therefore, is whether he
was convicted of an aggravated felonySSthat
is, whether burglary of a vehicle with intent to
commit theft constitutes a crime of violence, a
theft offense, a burglary offense, or none of the
above.
The INS claims that its conclusion that
Lopez-Elias committed an “aggravated felony”
is worthy of the familiar principles of
deference to administrative agencies an-
nounced in Chevron U.S.A., Inc. v. Natural
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
INS’s construction of its statutory powers of
deportation does not mean that similar
deference is warranted with respect to the
enforcement of this court’s jurisdictional
limitations. The former may trigger deference,
but the determination of our jurisdiction is
exclusively for the court to decide. This
distinction is particularly important here,
where the petitioner challenges not only the
INS’s statutory construction of its agency
powers, but also the constitutionality of those
powers.
Reviewing the matter de novo, we
nevertheless conclude that we have no
jurisdiction under IIRIRA, because Lopez-
Elias was convicted of a crime of violence
under § 1101(a)(43)(F). First, however, we
articulate why he was not convicted of a theft
or burglary offense under § 1101(a)(43)(G).
A.
To determine whether an alien has
committed an aggravated felony, courts look
to the text of the statute violated, not the
underlying factual circumstances.5 According
to the statute under which Lopez-Elias was
convicted, “[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 intent to commit any felony or
theft.” TEX. PENAL CODE ANN. § 30.04(a)
(West 1987).6
4 See also Food & Drug Admin. v. Brown &
Williamson Tobacco Corp., 120 S. Ct. 1291
(2000); INS v. Cardoza-Fonseca, 480 U.S. 421,
448-49 (1987); INS v. Aguirre-Aguirre, 526 U.S.
415, 424-25 (1999).
5 See Camacho-Marroquin, 188 F.3d at 652;
cf. Taylor v. United States, 495 U.S. 575, 600
(1990); United States v. Lomas, 30 F.3d 1191,
1193 (9th Cir. 1994).
6 At the time of Lopez-Elias’s conviction, Texas
law classified the offense as a third-degree felony.
See TEX. PENAL CODE ANN. § 30.04(c) (West
1987). In 1993, the statute was amended to treat
the offense as a Class A misdemeanor. See TEX.
PENAL CODE ANN. § 30.04(c) (West 1994); see
also TEX. PENAL CODE ANN. § 30.04(d) (West
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.
INS, 171 F.3d 994, 1006 (5th Cir. 1999) (stating
that “[t]he immigration laws contain no . . .
indication that they are to be interpreted in
accordance with state law”) (quoting United States
v. Campbell, 167 F.3d 94, 98 (2d Cir. 1999)).

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4
Lopez-Elias was specifically charged with
burglary of a vehicle with intent to commit
theft. Notably, however, his conviction did
not require a finding that he had actually com-
mitted theft; mere intent to commit was
sufficient. Lopez-Elias therefore did not
commit a “theft offense” for purposes of the
IIRIRA.7
Nor did he commit a burglary offense.
When Congress deploys the term “burglary”
without specifying a definition, a generic un-
derstanding of the word based on the modern
usage of the states, rather than the common
law definition, should be used. As the
Supreme Court has explained,
[w]e believe that Congress meant by
“burglary” the generic sense in which
the term is now used in the criminal
codes of most States. . . . Although the
exact formulations vary, the generic,
contemporary meaning of burglary
contains at least the following elements:
an unlawful or unprivileged entry into,
or remaining in, a building or other
structure, with intent to commit a crime.
Taylor v. United States, 495 U.S. 575, 598
(1990).
Thus, an alien need not have broken into a
dwelling, or done so at night, or done so with
intent to commit a felony (as opposed to a les-
ser offense), to satisfy the generic definition of
“burglary.” Id. at 593. Nor must the act have
presented a risk of physical injury to another
person. Id. at 596-98.
The Court did distinguish, however,
between burglary of “a building or other
structure” on the one hand, id. at 598-99, and
burglary of a vehicle on the other, id. at 599,
ultimately concluding that the generic term of
“burglary” embraced only the former, and not
the latter.8 Because Lopez-Elias was
convicted of burglary of a vehicle, not a
building, he did not commit a “burglary” for
purposes of IIRIRA, and the INS therefore
was not authorized to remove him by reason
of his commission of a burglary offense.
B.
This court has previously recognized, how-
ever, that burglary of a vehicle does constitute
a “crime of violence,” justifying deportation
under § 1101(a)(43)(F).9 It is true that the
INS did not actually pursue removal
7 In addition to listing certain offenses such as
theft as “aggravated felonies” triggering
deportation, IIRIRA provides that merely “an
attempt or conspiracy to commit” an enumerated
offense is deemed a deportable offense.
§ 1101(a)(43)(U). The INS does not raise the
argument, but we believe Elias could have been re-
movedSSand our jurisdiction could have been
precludedSSbased alternatively on the theory that
burglary of a vehicle with intent to commit theft is
tantamount to an offense of attempted theft.
8 See Taylor, 495 U.S. at 602 (“For example, in
a State whose burglary statutes include entry of an
automobile as well as a building, if the indictment
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
an entry of a building to convict, then the
Government should be allowed to use the
conviction.”).
9 See United States v. Delgado-Enriquez,
188 F.3d 592, 595 (5th Cir. 1999) (noting that
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) (same).

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proceedings on this ground.10 That the INS
proceeded on grounds of theft or burglary,
rather than crime of violence, however, does
not alter the conclusion that this court has no
jurisdiction because of Lopez-Elias’s
conviction of a crime of violence.
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
added). What the INS originally charged is of
no consequence; so long as the alien in fact is
removable for committing an aggravated fel-
ony, this court has no jurisdiction, irrespective
of whether the INS originally sought removal
for that reason.11
III.
Federal courts derive their power to
adjudicate from Congress, and not from the
Constitution alone. The permanent provisions
of IIRIRA therefore require that this petition
for review be dismissed for want of
jurisdiction.12 Accordingly, the motion to
dismiss the petition for review is
10 Lopez-Elias’s original notice to appear
charged him with the prior commission of a crime
of violence, but the INS subsequently amended its
charge to theft or burglary. For this reason, the
BIA expressly rejected the use of the crime-of-
violence provision to justify removal.
11 See Abdel-Razek v. INS, 114 F.3d 831, 832
(9th Cir. 1997) (“The fact that the BIA did not
issue its order with reference to that section does
not alter petitioner’s status as a convicted felon for
purposes of the availability of judicial review. We
therefore lack jurisdiction.”). We note, however,
that other circuits have held differently. See
Choeum v. INS, 129 F.3d 29, 38 (1st Cir. 1997)
(“The INS’s argument is essentially a linguistic
one. According to the INS, for purposes of
jurisdiction, aliens ‘deportable by reason of’ having
committed firearms offenses are not only those
aliens who have been ordered deported for firearms
offenses, but also those aliens who could be
deported for that reason. As a matter of statutory
construction, that argument is somewhat illogical:
The contested phrase comes from Section 440(a) of
(continued...)
11(...continued)
AEDPA, a statutory section solely concerned with
final orders of deportation. The section therefore
applies, by its very terms, only to aliens who have
actually been adjudged deportable. It is therefore
highly doubtful that, in that context, Congress
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
F.3d 601, 608 (7th Cir. 1999) (same).
12 Even if we are required to address Lopez-
Elias's constitutional claim on the merits
notwithstanding IIRIRA’s express preclusion of
jurisdiction, see Max-George, 205F.3d 194, 199-
200 (5th Cir. 2000) (stating that “courts faced with
petitions for review from criminal aliens must
determine whether the particular provisions
classifying the petitioner under the jurisdiction-
stripping provision . . . are being constitutionally
applied”), the claim that IIRIRA is
unconstitutionally retroactive has been rejected by
this court on numerous occasions. See id. at 200
(“Congress has the power to make an alien’s past
criminal conduct subject to present or future
deportation notwithstanding the fact that the alien
could not have been deported for the act at the time
it was committed.”); Moosa, 171 F.3d at 1009
(opining that “it is well settled that Congress has
the authority to make past criminal activity a new
ground for deportation.”) (quoting Ignacio v. INS,
955 F.2d 295, 298 (5th Cir. 1992)); see also
Lehmann v. United States ex rel. Carson,
353 U.S. 685, 690 (1957).

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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.

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