BRIEVA

Cite as 

 (BIA 2005)                               Interim Decision #3514




          In re Miguel Antonio BRIEVA-Perez, Respondent
                            File A36 099 993 - Houston
                                Decided June 7, 2005
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) The offense of unauthorized use of a motor vehicle in violation of section 31.07(a) of
   the Texas Penal Code is a crime of violence under 

(b) (2000) and is
   therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and
   Nationality Act, 

(a)(43)(F) (2000).
(2) An alien who is removable on the basis of his conviction for a crime of violence is
   ineligible for a waiver under former section 212(c) of the Immigration and Nationality
   Act, 

(c) (1994), because the aggravated felony ground of removal with
   which he was charged has no statutory counterpart in the grounds of inadmissibility
   under section 212(a) of the Act, 

(a) (2000).
FOR RESPONDENT: William F. Harmeyer, Esquire, Houston, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Lisa Luis, Assistant Chief
Counsel
BEFORE: Board Panel: HOLMES, HURWITZ and MILLER, Board Members.
MILLER, Board Member:

   In a decision dated October 15, 2003, an Immigration Judge found the
respondent removable as charged and denied his application for a waiver
under former section 212(c) of the Immigration and Nationality Act, 

(c) (1994). The respondent has appealed, arguing that his conviction
for “unauthorized use of a motor vehicle” is not a crime of violence under
section 101(a)(43)(F) of the Act, 

(a)(43)(F) (2000).
Alternatively, he argues that the Immigration Judge erred in finding him
ineligible for a section 212(c) waiver for failure to demonstrate a ground of
inadmissibility comparable to the ground on which he was found removable.
The respondent’s appeal will be dismissed.




                                          766
Cite as 

 (BIA 2005)                        Interim Decision #3514



        I. FACTUAL AND PROCEDURAL BACKGROUND
   The respondent is a native and citizen of Colombia who was admitted to the
United States in 1980 as a lawful permanent resident. On June 17, 1993, he
pleaded guilty in a Texas State court to “unauthorized use of a motor vehicle”
in violation of section 31.07(a) of the Texas Penal Code. Adjudication was
initially deferred and an order of 5 years’ probation was entered. After failure
to comply with the conditions of his probation, the respondent was
adjudicated guilty on August 15, 1995, and was sentenced to 5 years’
confinement. He served less than a year of this sentence.
   In February 2003, the Immigration and Naturalization Service (now the
Department of Homeland Security) commenced removal proceedings based
on the respondent’s conviction. Initially, the Service charged the respondent
under the aggravated felony ground for removal, section 237(a)(2)(A)(iii) of
the Act, 

(a)(2)(A)(iii) (2000), for a conviction relating to a
“theft offense” under section 101(a)(43)(G). The Service subsequently
withdrew this charge and substituted an aggravated felony “crime of violence”
charge under section 101(a)(43)(F) of the Act.
   The Immigration Judge found that the Service met its burden of
demonstrating that the respondent’s offense was an aggravated felony crime
of violence under controlling circuit court precedent. See United States v.
Galvan-Rodriguez, 

 (5th Cir. 1999) (holding that a conviction
under the Texas statute prohibiting “unauthorized use of a motor vehicle” was
a crime of violence under a provision of the United States Sentencing
Guidelines). The Immigration Judge also found that the respondent was
ineligible for a waiver under section 212(c) of the Act because he had not
demonstrated a comparable ground of inadmissibility. As no other relief was
sought, the Immigration Judge ordered the respondent removed from the
United States to Colombia.

                                     II. ISSUES
   In this appeal we must first decide whether the respondent’s offense was a
crime of violence and therefore an aggravated felony. If we conclude that he
was convicted of a crime of violence, we must then determine if there is a
comparable ground of inadmissibility for that ground of removal so as to
provide a basis for a section 212(c) waiver.

      III. AGGRAVATED FELONY “CRIME OF VIOLENCE”
  Section 31.07(a) of the Texas Penal Code prohibits the “unauthorized use
of a motor vehicle,” defined as “intentionally or knowingly operat[ing]
another’s boat, airplane, or motor-propelled vehicle without the effective
consent of the owner.” 

(a) (Vernon 2004). The

                                        767
Cite as 

 (BIA 2005)                                   Interim Decision #3514



question is whether the respondent’s conviction under this provision is for an
aggravated felony “crime of violence” under section 101(a)(43)(F) of the Act.
That section includes within the definition of an “aggravated felony”
     a crime of violence (as defined in section 16 of title 18, United States Code, but not
     including a purely political offense) for which the term of imprisonment [is] at least
     one year.

In turn, 

 (2000) defines a “crime of violence” as
     (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.

   The respondent’s offense is not a § 16(a) offense because the Texas statute
under which he was convicted does not include the use of force as an element
of the offense. The focus in this case, therefore, is on whether his offense
meets the requirements of § 16(b). There is no dispute that the respondent
was convicted of a felony offense. The only question is whether the offense
is one 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.” 

(b).
   In United States v. 

 the United States Court of
Appeals for the Fifth Circuit addressed the question whether a Texas
conviction for “unauthorized use of a motor vehicle” was a conviction for an
aggravated felony “crime of violence” in the context of a sentencing
enhancement determination. Under the applicable United States Sentencing
Guidelines, the question whether an enhancement was appropriate turned on
whether the respondent’s conviction was for a “crime of violence” within the
meaning 

.
   The court in Galvan-Rodriguez began its analysis by explaining that the
phrase “by its nature” in 

(b) “requires courts to employ a
categorical approach—without examining the underlying facts surrounding
the conviction—in determining whether an offense constitutes a crime of
violence.” United States v. 

. The court then
identified a number of offenses that, by their nature, involve a substantial risk
that physical force may be used against the person or property of another
during the course of their commission and are therefore crimes of violence
under § 16(b), including indecency with a child, United States v. Velazquez-Overa, 

 (5th Cir. 1996); burglary of a vehicle, United States v.
Ramos-Garcia, 

 (5th Cir. 1996); burglary of an automobile or
nonresidential building, United States v. Rodriguez-Guzman, 

 (5th
Cir. 1995); and burglary of a habitation, United States v. Guadardo, 

Cite as 

 (BIA 2005)                               Interim Decision #3514



102 (5th Cir. 1994). Comparing these offenses to the crime at issue, the court
reasoned as follows:
     Just as burglary of a vehicle involves a substantial risk that property might be
     damaged or destroyed in the commission of the offense, the unauthorized use of a
     vehicle likewise carries a substantial risk that the vehicle might be broken into,
     ‘stripped,’ or vandalized, or that it might become involved in an accident, resulting
     not only in damage to the vehicle and other property, but in personal injuries to
     innocent victims as well.

United States v. 

. The court therefore held
that the Texas offense of unauthorized use of a motor vehicle qualifies as a
crime of violence under 

(b).
   Although Galvan-Rodriguez interpreted § 16(b) in the context of the
Sentencing Guidelines, the court’s holding in that case is controlling in
determining the scope of § 16(b) as referenced in the immigration laws at
section 101(a)(43)(F) of the Act. See United States v. Hernandez-Avalos,

 (5th Cir. 2001) (rejecting different interpretations of the same
statutory provision in immigration and criminal cases).
   The respondent’s argument that Galvan-Rodriguez has been overruled by
United States v. Charles, 

 (5th Cir. 2002), is mistaken. The court
in Charles addressed whether simple automobile theft is a crime of violence
under the Sentencing Guidelines at U.S.S.G. § 4B1.2(a)(2). See 18 U.S.C.A.
ch. 4, § 4B1.2(a)(2) (West Supp. 2005). Unlike the Sentencing Guidelines
provision considered in Galvan-Rodriguez, § 4B1.2(a)(2) did not refer to the
definition of a crime of violence in 

. Rather, it referred, in
relevant part, to an offense that “involves conduct that presents a serious
potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). The
court in Charles pointed out a number of differences between the
requirements of § 4B1.2(a)(2) and those of 

(b). Notably,
“section16(b) applies to the use of force against person and property, whereas
§ 4B1.2(a)(2) only applies to conduct that presents a serious potential risk of
physical injury to another person.” United States v. 

.
Moreover, § 16(b) focuses on the nature of the offense, whereas § 4B1.2(a)(2)
focuses on conduct. Id. at 312. The court in Charles concluded that “we limit
our holding in United States v. Galvan-Rodriguez, to its property aspects and
to § 16 cases.” Id. at 314 (citation omitted); see also United States v. Lee,

 (5th Cir. 2002) (noting that the Galvan-Rodriquez holding
is limited to 

(b) cases). This modification of the scope of the
holding in Galvan-Rodriguez does not affect its force as controlling precedent
as applied to the respondent’s conviction.
   While the appeal in this case was pending, the United States Supreme Court
issued a decision addressing the meaning of the term “crime of violence” in

. Leocal v. Ashcroft, 

 (2004). In Leocal, the
Court found that driving under the influence of alcohol (“DUI”) and causing

                                          769
Cite as 

 (BIA 2005)                                 Interim Decision #3514



serious bodily injury in violation of a Florida statute was not a “crime of
violence.” In so holding, the Court found that the reference to “use of force”
in 

 requires “a higher degree of intent than negligent or merely
accidental conduct.” Id. at 382. The Court concluded that the reference to
“use of force” in both § 16(a) and § 16(b) must be given “an identical
construction, requiring a higher mens rea than the merely accidental or
negligent conduct involved in a DUI offense.” Id. at 383.
   Although some of the discussion in United States v. 

, regarding the “substantial risk of use of force” refers to risks
associated with accidental or negligent conduct,1 other aspects of the court’s
analysis refer to risks related to intentional, deliberate, or at least reckless use
of force, e.g., the risk that “the vehicle might be broken into, ‘stripped,’ or
vandalized.” In a recent district court decision, the court found that the Fifth
Circuit’s holding in Galvan-Rodriquez, i.e., that a conviction under the Texas
statute prohibiting “unauthorized use of a motor vehicle” is a crime of
violence under § 16(b), remains binding after Leocal v. Ashcroft. Ramirez v.
Ashcroft, 

 (S.D. Texas 2005). Putting aside those aspects
of the analysis in Galvan-Rodriguez that might be called into question by
Leocal, the court in Ramirez found that the nature of the offense was such that
it involved a substantial risk that force would be used to cause property
damage during the commission of the offense. The court reasoned:
      An unauthorized driver is likely to use physical force to gain access to a vehicle and
      to drive it. This is a sufficient risk of the use of physical force in the course of
      committing the offense to find, after Leocal, that unauthorized use of a motor vehicle
      is a “crime of violence” under section 16(b).

. The district court therefore concluded that “Galvan-Rodriguez
appears to remain good law after Leocal and as such is binding on this court.”

 We, too, find that Galvan-Rodriquez remains controlling law in cases
arising in the Fifth Circuit, and that the Immigration Judge correctly applied
its holding to the facts in this case. Accordingly, we conclude that the
respondent’s offense was a crime of violence and that he is therefore
removable as an alien convicted of an aggravated felony.

    IV. COMPARABLE GROUND OF INADMISSIBILITY FOR
                   SECTION 212(c)
  The second issue on appeal is whether the Immigration Judge correctly
determined that the respondent is ineligible for a waiver of inadmissibility
under former section 212(c) of the Act for lack of a comparable ground of

1
  For example, United States v. 

, refers, in part, to the risk
that vehicles taken for unauthorized use may become involved in accidents resulting in
property damage or injury to innocent victims.

                                            770
Cite as 

 (BIA 2005)                               Interim Decision #3514



inadmissibility in section 212(a) of the Act, 

(a) (2000).
Section 212(c) provides a discretionary waiver for “[a]liens lawfully admitted
for permanent residence who temporarily proceeded abroad voluntarily and
not under an order of deportation, and who are returning to a lawful
unrelinquished domicile of seven consecutive years.” A section 212(c) waiver
is available in deportation proceedings for nondeparting permanent resident
aliens to waive a deportation ground for which there is a comparable ground
of inadmissibility. Matter of Hernandez-Casillas, 

 (BIA
1990; A.G. 1991); Matter of Wadud, 

 (BIA 1984).
   The United States Supreme Court recently held that the section 212(c)
waiver, although repealed by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of 

 Stat.
3009-546, remains available in removal proceedings “for aliens . . . whose
convictions were obtained through plea agreements and who, notwithstanding
those convictions, would have been eligible for § 212(c) relief at the time of
their plea under the law then in effect.” INS v. St. Cyr, 

(2001). The Court in St. Cyr did not address the issue of comparable
grounds.2 Recently enacted regulations, however, make clear that the
statutory counterpart requirement for section 212(c) eligibility applies to
respondents in removal proceedings who seek a waiver under the holding in
St. Cyr. See Executive Office for Immigration Review; Section 212(c) Relief
for Aliens with Certain Criminal Convictions Before April 1, 1997, 

, (Sept. 28, 2004) (to be codified at 

(f)(5)); see
also Matter of Blake, 

 (BIA 2005) (applying the regulation
to find no comparable ground of inadmissibility in section 212(a) for a
conviction for “sexual abuse of a minor” under section 101(a)(43)(A) of the
aggravated felony definition).3
   In Matter of Blake, supra, after reviewing our precedent decisions on the
question of comparable grounds, we concluded that “whether a ground of
deportation or removal has a statutory counterpart in the provisions for
exclusion or inadmissibility turns on whether Congress has employed similar
language to describe substantially equivalent categories of offenses.” Id. at
728. In Blake, we found the mere overlap between “sexual abuse of a minor”
and some crimes involving moral turpitude insufficient to demonstrate that the
provisions were statutory counterparts.


2
   The cases before the Court in St. Cyr involved convictions for aggravated felony drug
offenses, a category of offenses recognized as comparable to the section 212(a) ground of
inadmissibility for drug trafficking offenses. Matter of Meza, 

 (BIA 1991).
3
  As we observed in Matter of Blake, supra, at 726-27, the Supplementary Information to
the final rule includes a commenter’s reference to “Murder, Rape, or Sexual Abuse of a
Minor,” as well as “Crime of Violence,” as aggravated felony categories that would have
no comparable ground of inadmissibility. See 69 Fed. Reg. at 57,831-32.

                                          771
Cite as 

 (BIA 2005)                                    Interim Decision #3514



   In making the comparison in this case, the relevant question is whether the
“crime of violence” aggravated felony ground, as defined in section
101(a)(43)(F) of the Act, is substantially equivalent to a ground of
inadmissibility in section 212(a) of the Act.4 As employed in section
101(a)(43(F), the term “crime of violence” means
      (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.

.
   Some of the most common crimes falling within the definition of a “crime
of violence” do not necessarily involve moral turpitude. For example, the
“crime of violence” definition encompasses offenses such as burglary or
breaking and entering, which involve entry into a building by means of
physical force. Such offenses, however, would not generally be considered
crimes of moral turpitude unless accompanied by the intent to commit a
morally turpitudinous crime, such as larceny, after entering the building. See,
e.g., Matter of M-, 

, 723 (BIA, A.G. 1946). Similarly, simple
assault offenses involving the infliction of physical injury do not, in the
absence of aggravating factors, involve moral turpitude. Matter of Fualaau,

 (BIA 1996). They may, however, constitute crimes of
violence. Matter of Martin, 

 (BIA 2002).
   The respondent’s unauthorized use of a motor vehicle, although an
aggravated felony crime of violence, is not generally considered a crime
involving moral turpitude. In Ramirez v. Ashcroft, supra, the court found that
unauthorized use of a motor vehicle is not a crime involving moral turpitude,
reasoning as follows:
      Unauthorized use of a motor vehicle can encompass acts such as using a vehicle in a
      manner that exceeds the scope of the owner’s consent. Although the substantial risk
      that violence against property may be used in the commission of the offense justifies
      classifying the offense as an aggravated felony, as that statutory term has been defined
      in this circuit, the moral turpitude analysis is not based on a substantial likelihood that
      base, violent, or depraved acts will occur. Rather, if a statute can be violated by both
      acts that do and do not involve moral turpitude, the crime does not involve moral
      turpitude for the purpose of the Immigration Act.
4
  The respondent argues that his crime is a “theft offense” for purposes of comparing the
moral turpitude ground of inadmissibility. However, the respondent has not been charged
with an aggravated felony “theft offense.” The comparable ground test for section 212(c)
requires that the offense charged, i.e., “crime of violence,” have an analogous ground of
inadmissibility. Whether the respondent could be found inadmissible for a “theft offense”
amounting to a crime of moral turpitude is not relevant to the critical question whether the
“crime of violence” removal ground has a comparable ground of inadmissibility.

                                             772
Cite as 

 (BIA 2005)                        Interim Decision #3514




Ramirez v. Ashcroft, supra, at 658 (citations omitted); see also Matter of M-,

, 687 (C.O.; BIA 1946) (finding that joyriding is not a crime
involving moral turpitude); Matter of D-, 

 (BIA 1941)
(finding that driving an automobile without the consent of the owner is not a
crime involving moral turpitude).
   Although there need not be perfect symmetry in order to find that a ground
of removal has a statutory counterpart in section 212(a), there must be a closer
match than that exhibited by the incidental overlap between section
101(a)(43)(F) (crime of violence) and section 212(a)(2)(A)(i)(I) (crime
involving moral turpitude). The distinctly different terminology used to
describe the two categories of offenses and the significant variance in the
types of offenses covered by these two provisions lead us to conclude that
they are not “statutory counterparts” for purposes of section 212(c) eligibility.
We therefore agree with the Immigration Judge that the respondent is
ineligible for a section 212(c) waiver. Accordingly, the respondent’s appeal
will be dismissed.
   ORDER: The respondent’s appeal is dismissed.




                                      773