OLIVARES

Cite as 

 (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, 

 (5th Cir. 2001), and United States
v. Hernandez-Avalos, 

 (5th Cir. 2001), a Texas conviction for felony DWI is
not classifiable as a crime of violence conviction under 

(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, 

(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, 

(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 

(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 

(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,

 (5th Cir. 1999). However, the Fifth Circuit withdrew that
decision in Camacho-Marroquin v. INS, 

 (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 

(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, 

 (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, 

 (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, 

 (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 

(b).
   The Fifth Circuit pointed out that 

(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. 

. The court concluded that a violation of the Texas felony DWI statute is not
a crime of violence under 

(b). Id. at 928.
   The outstanding question is what effect the sentence enhancement decision
in United States v. 

 has on immigration proceedings.4
While we were deliberating about this matter, the Fifth Circuit issued United
States v. Hernandez-Avalos, 

 (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 

(b). United States v. 

 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 

(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, 

 (BIA
2001).
5
  We recognize that United States v. 

 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, 

 (5th Cir. 2001), and
without addressing the significant issue regarding uniformity raised by the
decision in United States v. Hernandez-Avalos, 

 (5th Cir. 2001).
While this Board stated in Matter of Herrera, 

 (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, 

 (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, 

 (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, 

 (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, 

 (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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