HERRERA

Cite as 

 (BIA 2001)                                    Interim Decision #3445




                  In re Alejandro HERRERA, Respondent
                              File A34 767 783 - Houston
                                Decided April 13, 2001
                            U.S. Department of Justice
                      Executive Office for Immigration Review
                          Board of Immigration Appeals

    Respondent’s motion for a stay of deportation, pending consideration of his simultaneously
filed motion to reopen and reconsider, is granted in light of the decision of the United States
Court of Appeals for the Fifth Circuit in United States v. Chapa-Garza, 

(5th Cir. 2001), which held that a conviction for driving while intoxicated in violation of
section 49.09 of the Texas Penal Code is not a conviction for a crime of violence under
section 101(a)(43)(F) of the Immigration and Nationality Act, 

(a)(43)(F)
(Supp. V 1999).

FOR RESPONDENT: Martha Garza, Esquire, Alhambra, California

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Charlotte K. Lang,
Assistant District Counsel

BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman;
        HEILMAN, SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, FILPPU,
        COLE, GUENDELSBERGER, MATHON, ROSENBERG, JONES, GRANT,
        MOSCATO, MILLER, BRENNAN, ESPENOZA, and OSUNA, Board
        Members. Dissenting Opinion: HEILMAN, Board Member.1

ESPENOZA, Board Member:

   In a decision dated December 22, 2000, we affirmed the decision of an
Immigration Judge finding that the respondent had been convicted of a crime of
violence under section 101(a)(43)(F) of the Immigration and Nationality Act,

(a)(43)(F) (Supp. V 1999), based on his conviction for driving
while intoxicated in violation of section 49.09 of the Texas Penal Code, and
ordering him removed from the United States. See section 237(a)(2)(A)(iii) of
the Act, 

(a)(2)(A)(iii) (Supp. V 1999); Matter of Puente,
Interim Decision 3412 (BIA 1999). The respondent has filed a motion to
reopen and reconsider and a motion for emergency stay of deportation pending
our consideration of his motion. The request for a stay will be granted.


1
    Board Member Kevin A. Ohlson did not participate in the decision in this case.

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Cite as 

 (BIA 2001)                           Interim Decision #3445




   Since we issued our decision in the respondent’s case, the United States
Court of Appeals for the Fifth Circuit, the jurisdiction in which this case arises,
held that a conviction for a violation of section 49.09 of the Texas Penal Code
is not a conviction for a crime of violence under section 101(a)(43)(F) of the
Act. See United States v. Chapa-Garza, 

 (5th Cir. 2001)
(addressing the reference to section 101(a)(43)(F) in the context of the United
States Sentencing Guidelines). We therefore find it appropriate to stay the
order of removal in the respondent’s case in order to give us an opportunity to
consider if, and to what extent, the Fifth Circuit’s decision may have a bearing
on our precedent decision in Matter of Puente, supra.
   ORDER: The respondent’s request for a stay of deportation is granted.

DISSENTING OPINION: Michael J. Heilman, Board Member
  I respectfully dissent without opinion.




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