Garcia v. Holder

¶5PER CURIAM:

¶6In 1998, Adrian Garcia (“Garcia”) was convicted of committing an auto burglary in violation of section 30-16-3(B) of the New Mexico Statutes Annotated. In 2010, the Department of Homeland Security (“DHS”) served Garcia with a Notice To Appear (“NTA”) charging him with remov-ability under 8 U.S.C. § 1182(a)(2)(A)(i)(I), which renders inadmissible any alien convicted of a crime involving moral turpitude, based on his New Mexico auto-burglary conviction. The immigration judge (“U”) determined that Garcia was removable as charged and also determined that Garcia’s auto-burglary conviction constituted a conviction for an aggravated felony under 8 U.S.C. § 1101(a)(43), rendering him ineligible to apply for cancellation of removal under 8 U.S.C. § 1229b(a)(3). Garcia appealed the IJ’s determination that he was ineligible to apply for cancellation of removal to the Board of Immigration Appeals (“BIA”). He did not appeal the IJ’s determination that his New Mexico auto-burglary conviction constituted a conviction for a crime involving moral turpitude that, under 8 U.S.C. § 1182(a)(2)(A)(i)(I), rendered him inadmissible. Ultimately, the BIA dismissed the appeal, agreeing that Garcia’s auto-burglary conviction, as a conviction for an aggravated felony, rendered him ineligible to apply for cancellation of removal.

¶7In his petition for review, Garcia challenges the BIA’s determination that his auto-burglary conviction constitutes a conviction for an aggravated felony. He does not challenge the IJ’s determination that he is removable on the basis of his New Mexico auto-burglary conviction, which he did not appeal to the BIA. Having reviewed the parties’ arguments, we make explicit what was dictum in Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir.2000), and join the Seventh, Ninth, and Tenth Circuits, see United States v. Venzor-Granillo, 668 F.3d 1224, 1226, 1232 (10th Cir.2012); Ngaeth v. Mukasey, 545 F.3d 796, 801-02 (9th Cir.2008); United States v. Martinez-Garcia, 268 F.3d 460, 466 (7th Cir.2001), in holding that a conviction for unauthorized entry of a vehicle with intent to commit a theft therein constitutes a conviction for an attempted theft offense, which, under 8 U.S.C. §§ 1101(a)(43)(U) and 1229b(a)(3), renders Garcia ineligible to apply for cancellation of removal. We therefore DENY Garcia’s petition for review.

¶8BACKGROUND

¶9On July 19, 2010, DHS served Garcia, a native and citizen of Mexico and a lawful permanent resident of the United States, with the NTA. The NTA alleged that Garcia was subject to removal under 8 U.S.C. § 1182(a)(2)(A)(i)(I) because he had been convicted of auto burglary, a crime of mor*842al turpitude, in New Mexico in 1998.1 Garcia admitted that he was a native and citizen of Mexico and was a lawful permanent resident of the United States but he denied the remaining allegations and denied removability.

¶10On September 6, 2011, the IJ held a removal hearing and determined that Garcia was removable pursuant to § 1182(a)(2)(A)(i)(I). The IJ then scheduled future hearings to provide Garcia an opportunity to file an application for cancellation of removal, which Garcia subsequently filed. The IJ later ruled, however, that because Garcia’s auto-burglary conviction constituted a conviction for an aggravated felony under 8 U.S.C. § 1101(a)(43), Garcia was ineligible to apply for cancellation of removal under 8 U.S.C. § 1229b(a)(3).

¶11Garcia appealed to the BIA, arguing that the IJ had erred by finding that his auto-burglary conviction constituted a conviction for an aggravated felony. The BIA, however, upheld the IJ’s decision and dismissed the appeal. The BIA held that this circuit’s decision in Lopez-Elias foreclosed the IJ’s conclusion that Garcia’s auto-burglary conviction constituted a conviction for an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), which defines “aggravated felony” to include “a theft offense ... for which the term of imprisonment [is] at least one year.” Nevertheless, the BIA ruled that the error was harmless because Garcia’s auto-burglary conviction constituted a conviction for an aggravated felony under 8 U.S.C. § 1101(a)(43)(U), which defines “aggravated felony” to include “an attempt or conspiracy to commit an offense described in” subsection (a)(43). The BIA therefore concluded that Garcia was ineligible to apply for cancellation of removal. Garcia filed a timely petition for review.

¶12STANDARD AND SCOPE OF REVIEW

¶13“We review the BIA’s conclusions of law de novo, although we defer to the BIA’s interpretation of [ambiguous] immigration regulations if that interpretation is reasonable.” Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir.2006). Whether a prior conviction constitutes an aggravated felony under the Immigration and Nationality Act (“INA”) is a question of law we review de novo, see Patel v. Mukasey, 526 F.3d 800, 802 (5th Cir.2008), as is “[t]he BIA’s determination that an alien is ineligible for discretionary relief in the form of cancellation of removal,” Vasquez-Martinez v. Holder, 564 F.3d 712, 715 (5th Cir.2009).

¶14The record in this case does not clearly establish whether Garcia has already been removed from the United States. Nevertheless, the Supreme Court has stated that a petition for review is not rendered moot by merit of the petitioner’s removal; even if Garcia has been removed, he may still seek cancellation of removal from abroad. See Carachuri-Rosendo v. Holder, 560 U.S. 563, 130 S.Ct. 2577, 2584 n. 8, 177 *843L.Ed.2d 68 (2010).2

¶15DISCUSSION

¶16Garcia did not challenge the IJ’s determination that he is removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I) on the basis of his New Mexico auto-burglary conviction. Consequently, we do not — and may not— consider this issue. See Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir.2009). Garcia argues instead that the BIA erred in holding that his auto-burglary conviction constitutes a conviction for an aggravated felony that, under 8 U.S.C. § 1229b(a)(3), renders him ineligible to apply for cancellation of removal. We conclude that the BIA did not so err and therefore deny Garcia’s petition for review.

¶17I.

¶18“When the Government alleges that a state conviction qualifies as an ‘aggravated felony’ under the INA, [courts] generally employ a ‘categorical approach’ to determine whether the state offense is comparable to an offense listed in the INA.” Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). “Under this approach [courts] look ‘not to the facts of the particular prior case,’ but instead to whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” Id.(quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). “[A] state offense is a categorical match with a generic federal offense only if a conviction of the state offense “ ‘necessarily” involved ... facts equating to [the] generic [federal offense].’ ” Id.(alterations in original) (quoting Shepard v. United States, 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). “Because [courts] examine what the state conviction necessarily involved, not the facts underlying the case, [the court] must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” Id.(alterations in original) (quoting Johnson v. United States, 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)).

¶19The categorical approach, however, is subject to certain qualifications. See id.One such qualification is when a state conviction is obtained under a divisible criminal statute, which triggers what is called the “modified” categorical approach. See Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2283-84, 186 L.Ed.2d 438 (2013) (explaining that a divisible statute “comprises multiple, alternative versions of the crime”). The modified categorical approach “serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which elements played a part in the [petitioner’s] conviction.” Id. at 2283. When

*844addressing] state statutes that contain several different crimes, each described separately, ... [the Court] ha[s] held that a court may determine which particular offense the noncitizen was convicted of by examining the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or some comparable judicial record of the factual basis for the plea.

¶20Moncrieffe, 133 S.Ct. at 1684 (quoting Nijhawan v. Holder, 557 U.S. 29, 35, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009)) (internal quotation marks omitted).

¶21II.

¶22In 1998, Garcia was convicted of committing an auto burglary in violation of section 30-16-3(B) of the New Mexico Statutes Annotated, which provides that “[a]ny person who, without authorization, enters any vehicle, watercraft, aircraft or other structure, movable or immovable, with intent to commit any felony or theft therein is guilty of a fourth degree felony.” In this case, the BIA determined that Garcia’s conviction under this statute constituted a conviction for an aggravated felony under 8 U.S.C. § 1101(a)(43)(U) because it was an attempted theft offense.

¶23We note that section 30-16-3(B) may be violated if a person enters a vehicle without authorization and attempts to commit a crime other than a theft therein, for instance, arson. See N.M. Stat. Ann. § 30-16-3(B) (“with intent to commit any felony or theft therein”) (emphasis added); State v. Post, 109 N.M. 177, 783 P.2d 487, 492 (N.M.App.1989) (holding that the evidence, which showed that the defendant had entered a high school without permission and with intent to commit arson therein, was sufficient to convict him of burglary under section 30-16-3(B)). Consequently, we conclude that the statute is divisible, accord Ngaeth, 545 F.3d at 801, and employ the modified categorical approach to aid our examination of “which elements played a part in the [petitioner’s] conviction,” Descamps, 133 S.Ct. at 2283-84. Under that approach, we may consider a limited number of additional documents, including the charging document and, in the case of a guilty plea, the plea agreement. Moncrieffe, 133 S.Ct. at 1684.

¶24In this case, those documents reflect that Garcia was charged with “enterfing] a vehicle, a 1988 Chevrolet Astro Van belonging to Teresa Larranaga, without authorization or permission, with intent to commit a theft therein, contrary to § 30-16-3(B), NMSA 1978” and that Garcia pleaded guilty “as charged.” The documents therefore reveal that Garcia was convicted under the subsection criminalizing unauthorized entry of a motor vehicle with intent to commit a theft therein.

¶25In Lopez-Elias v. Reno, this court considered “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 violence.” 209 F.3d at 790.3 Ultimately, the court concluded that although the petitioner’s *845auto-burglary conviction was neither a conviction for a theft offense nor a conviction for a burglary offense under 8 U.S.C. § 1101(a)(43)(G), the petitioner’s auto-burglary conviction did constitute a conviction for a crime of violence under 8 U.S.C. § 1101(a)(43)(F). See id.at 792-93 & n. 9. This conclusion was dispositive of the case, see id. at 793, so this court had no opportunity to consider whether the petitioner’s auto-burglary conviction also constituted a conviction for an attempted theft offense under 8 U.S.C. § 1101(a)(43)(U), see also id.at 792 n. 7 (noting that the government “d[id] not raise th[is] argument”).4 Nevertheless, the court reasoned in dictum that the petitioner’s conviction for unauthorized entry of a vehicle with intent to commit a theft therein was “tantamount to an offense of attempted theft” under 8 U.S.C. § 1101(a)(43)(U). Id.

¶26Three other circuit courts have expressly held that a conviction for unauthorized entry of a vehicle with intent to commit a theft therein constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(U). See Venzor-Granillo, 668 F.3d at 1232 (“A comparison of the elements of Venzor-Granillo’s conviction for first degree criminal trespass with the elements of the generic definition of attempt to commit a theft offense shows that Venzor-Granillo necessarily admitted all the elements of the generic crime of attempt to commit theft.”); Ngaeth, 545 F.3d at 801-02 (holding, under the modified categorical approach, that “a conviction for entering a locked vehicle with the intent to commit theft constitutes an attempted theft offense for purposes of the aggravated felony definition” under 8 U.S.C. § 1101(a)(43)(U)); Martinez-Garcia, 268 F.3d at 466 (“In pleading guilty to this charge, [Martinez-]Garcia admitted engaging in conduct which we determine to fit within the parameters of an attempt to commit a theft offense under [8 U.S.C. § 1101(a)(43)(U) ], and the district court therefore did not err in concluding that the defendant’s 1988 conviction was an aggravated felony.”).

¶27The Second Circuit has warned that inchoate crimes such as attempt are highly fact-specific and, therefore, not amenable to categorical analysis. See Sui v. I.N.S., 250 F.3d 105, 119 (2d Cir.2001). Sui, however, is inapposite because it did not involve a petitioner who had been convicted of auto burglary like Garcia and the petitioners in Lopez-Elias, Venzor-Granillo, Ngaeth, and Martinez-Garcia. Rather, Sui had been convicted of possessing counterfeit securities, and the Second Circuit’s holding that this did not constitute a conviction for an attempted offense under 8 U.S.C. § 1101(a)(43)(U) was based on reasoning specific to the nature of securities offenses. See id.(“Given that possession of counterfeit securities with an intent to deceive does not necessarily constitute an attempt to pass these securities and cause a loss, ... we find that Sui has not been convicted of an aggravated felony as defined in subsection (U).”). Moreover, the Sui court articulated a two-part test to prove attempt, asking “(1) has the defendant acted with the culpability otherwise required for the commission of the crime he or she is charged with attempting and (2) has the defendant engaged in conduct that constitutes a substantial step toward the commission of the crime and that is strongly corroborative of the actor’s criminal purpose?” Id. at 115 (emphasis added). Both the Seventh Circuit and the Ninth Circuit have observed that a petitioner takes a substantial step toward committing a theft offense when he unlawfully enters a vehicle without the owner’s *846consent. See Ngaeth, 545 F.3d at 802 (reasoning that “entering a Vehicle ... when the doors are locked’ clearly constitutes a substantial step towards committing a theft”) (citation omitted); Martinez-Garcia, 268 F.3d at 466 (“The 1988 Information charged Garcia with the intent to commit a theft, and also charged him with taking a substantial step toward the commission of the theft (unlawfully entering a motor vehicle without the owner’s consent).”); see also Venzor-Granillo, 668 F.3d at 1232 (stating that “the generic definition of ‘attempt’ is an intent to commit a crime and the commission of an act which constitutes a substantial step toward commission of that crime” and holding that “the elements of the offense Venzor-Gran-illo pleaded guilty to, as set forth in his plea agreement, substantially correspond to the elements of the generic offense of attempt to commit theft”). Whereas possessing counterfeit securities does not alone constitute a substantial step toward passing them along and causing loss, Sui, 250 F.3d at 119, we conclude that Garcia took the requisite substantial step toward the commission of a theft offense based on his pleading guilty to entering another person’s vehicle without her authorization or permission and with the intent to commit a theft therein.

¶28We therefore join the Seventh, Ninth, and Tenth Circuits and make explicit what was dictum in Lopez-Elias: a petitioner’s state-law conviction for unauthorized entry of a vehicle with intent to commit a theft therein constitutes a conviction for an attempted theft offense under 8 U.S.C. § 1101(a)(43)(U). We therefore conclude that Garcia is ineligible to apply for cancellation of removal under 8 U.S.C. § 1229b(a)(3).

¶29CONCLUSION

¶30For the foregoing reasons, we DENY Garcia’s petition for review.

¶35EMILIO M. GARZA, Circuit Judge,

¶36specially concurring:

¶37I concur in the judgment denying Garcia’s petition for review. I agree that Garcia is ineligible to seek discretionary cancellation of removal because his New Mexico auto-burglary conviction constitutes an aggravated felony under federal immigration law. See 8 U.S.C. § 1229b(a)(3) (providing that the Attorney General “may cancel removal” if a nonciti-zen “has not been convicted of any aggravated felony”).

¶38I write separately for two reasons. First, Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir.2000), provides a more straightforward basis for concluding that Garcia is an aggravated felon: His auto-burglary offense is a “crime of violence.” Second, because Garcia bears the burden of proving that he is not an aggravated felon, the majority misapplies the categorical approach in this case.1

¶39The majority unnecessarily reaches a question reserved by dicta in Lopez-Elias — whether burglary of an automobile with intent to commit a theft constitutes a generic “attempted theft” offense under 8 U.S.C. § 1101(a)(43)(U). Ante at 845. Lopez-Elias ’s holding articulates the disposi-tive principle: “[B]urglary of a vehicle does constitute a ‘crime of violence,’ justifying deportation under [8 U.S.C] § 1101(a)(43)(F).” 209 F.3d at 792; see *847also id.at 792 n. 9 (collecting cases). As the majority recognizes, the Texas burglary statute in Lopez-Elias is “virtually identical” to the New Mexico statute here. Ante at 844 n. 3.2 And just as Lopez-Elias’s conviction for a “crime of violence” rendered him a removable aggravated felon, such a conviction makes Garcia an aggravated felon ineligible for discretionary relief. See 8 U.S.C. § 1229b(a)(3); Lopez-Elias, 209 F.3d at 793. Thus, I would simply apply the holding of Lopez-Elias and conclude that because Garcia was convicted of a crime of violence, he is an aggravated felon ineligible for discretionary relief.

¶40More importantly, the majority misapplies the categorical approach in this case. In the cases cited by the majority, the government bore the burden of proving that an individual’s state law conviction did constitute a generic federal offense. See Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684-85, 185 L.Ed.2d 727 (2013) (considering whether a noncitizen committed an “aggravated felony” under the INA, thereby rendering him removable); Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2283-86, 186 L.Ed.2d 438 (2013) (considering whether a defendant committed the “violent felony” of “burglary” under the Armed Career Criminal Act (“ACCA”), thereby triggering a sentence enhancement).3 In those cases, “a state offense is a categorical match with a generic federal offense only if a conviction of the state offense necessarily involved facts equating to the generic federal offense.” Moncriejfe, 133 S.Ct. at 1684 (internal quotation marks and alterations omitted) (emphasis added). Accordingly, courts must determine whether even the “least of the acts” sufficient to support the prior state law conviction fits within the federal offense’s definition. Ante at 843 (quoting Moncriejfe, 133 S.Ct. at 1684 (internal alterations omitted)). If not, then the government cannot carry its burden of proof, because it is possible that the state law did not “involv[e] facts equating to the generic federal offense.” See Moncriejfe, 133 S.Ct. at 1684.

¶41But in this case, the immigration statute inverts the burden of proof and thereby alters the categorical approach’s application in a critical way. Here, the Government does not bear the burden of proving that Garcia is an aggravated felon. Rather, it is Garcia, as a noncitizen seeking discretionary cancellation of removal, who bears the burden of proving by a “preponderance of the evidence” that he did not commit an aggravated felony under the INA. 8 C.F.R. § 1240.8(d); see also 8 U.S.C. § 1229a(c)(4)(A); Ramos-Torres v. *848Holder, 637 F.3d 544, 548 (5th Cir.2011) (“[A]n alien seeking cancellation of removal has the burden of proof to establish that he is eligible for the relief sought.”). That is, Garcia must prove that the state law under which he was convicted encompasses no acts falling within the INA’s aggravated felony definition — that his conviction necessarily involved facts not equating to the generic federal offense, to invert Mon-crieffe’s formulation. Cf. Moncrieffe, 133 S.Ct. at 1684 (“[A] state offense is a categorical match with a generic federal offense only if a conviction of the state offense necessarily involved facts equating to the generic federal offense.” (internal quotation marks and alterations omitted)).

¶42To carry his burden, Garcia must do more than prove merely that the least of the acts criminalized by the New Mexico statute would not constitute an aggravated felony under the INA. After all, such proof would not foreclose the possibility that he was convicted for more severe or aggravated acts. (Indeed, when the Government bears the burden, courts draw the same inference in the opposite direction: An individual might have committed the least of the acts covered by the state statute. Id.) Accordingly, in order to prevail, Garcia must demonstrate that even the most — not the least — of the acts criminalized by the state statute would not constitute an aggravated felony. This approach is still “categorical” in its comparison of the elements of federal and state offenses; the parties may not re-litigate the facts underlying Garcia’s conviction. See Mon-crieffe, 133 S.Ct. at 1690-91.4 But the inquiry into the “most” rather than the “least” of the state law’s criminalized acts is mandated by Garcia’s statutory burden of proving that he is not an aggravated felon.

¶43The Fourth Circuit applied the categorical approach in precisely this manner in Mondragon v. Holder, 706 F.3d 535 (4th Cir.2013). Mondragon, like Garcia here, sought discretionary cancellation of removal.5 Mondragon conceded that he bore the burden of demonstrating eligibility for such relief, id.at 544-45 (citing 8 U.S.C. § 1229a(c)(4)(A)), and that he could not prove that his prior Virginia conviction for assault and battery was “nonviolent” under the categorical approach, id. at 538, 544. He contended, however, that the “policies underlying [the categorical approach] may be suited for the circumstances when the government bears the burden of proof, but ... [not for] a proceeding such as this, where the alien bears the burden of proof.” Id.The court roundly rejected this proposition. Applying the categorical approach, the court held that because a “crime of violence” involves the use of “violent force ... capable of causing physical pain or *849injury to another person,” Mondragon could not meet his burden of proving that “his prior conviction was not for” a crime of violence because “the crime of conviction could cover conduct that was violent or nonviolent.” Id. at 545 (emphasis added).6 In short, “an inconclusive record of conviction ... is insufficient to meet an alien’s burden of demonstrating eligibility for cancellation of removal.” Id.

¶44Unlike the Fourth Circuit, the majority fails to account for the burden of proof in today’s opinion. Nonetheless, I concur in the judgment because, here, it so happens that both the “most” and “least” of the acts sufficient for Garcia’s auto-burglary conviction would constitute an aggravated felony. The New Mexico statute, read together with Garcia’s charging document,7 covers the act of burglary of an automobile with intent to commit theft. Ante at 844. No matter how this offense is committed, it necessarily creates a “substantial risk that physical force will be used against the person or property of another in the course of committing the offense,” and thus constitutes a crime of violence under 8 U.S.C. § 1101(a)(43)(F) and our precedents. United States v. Delgado-Enriquez, 188 F.3d 592, 595 (5th Cir.1999); accord Lopez-Elias, 209 F.3d at 792 n. 9.8 Thus, I agree that Garcia’s petition must be denied. In my view, however, such denial is proper because Garcia failed to carry his burden of proving that the most of the acts criminalized by New Mexico’s auto-burglary statute, N.M. Stat. Ann. § 30-16-3(B), does not constitute an aggravated felony under 8 U.S.C. § 1101(a)(43).9

¶45*850Thus far, the courts of appeals that have considered a noncitizen’s eligibility for discretionary relief have applied the categorical approach inconsistently. In contrast to the Fourth Circuit in Mondragon, other circuits have not yet explicitly considered the effect of the noncitizen’s burden of proof. See Donawa v. U.S. Attorney General, 735 F.3d 1275 (11th Cir.2013); Sanchez-Avalos v. Holder, 693 F.3d 1011 (9th Cir.2012); Jean-Lowis v. Attorney General of U.S., 582 F.3d 462 (3d Cir.2009). Regrettably, a panel of this Court recently passed on an opportunity to do so in Sarmientos v. Holder, 742 F.3d 624 (5th Cir.2014).10 The question thus remains open in this Circuit, as in others.

¶46A future court should take up the important task of clarifying the application of the categorical approach to cases such as this one — where a noncitizen must prove he is eligible for discretionary relief by virtue of not having committed an aggravated felony under the INA. To give effect to both the categorical approach and the statutory burden of proof, courts must find the noncitizen eligible only if he shows that even the most of the acts sufficient for his prior state law conviction would not constitute an aggravated felony. But because I agree that Garcia is not eligible to seek discretionary relief, I concur in the judgment only.