** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **
Executive Office for Immigration Review
Board of Immigration Appeals
Steve Spurgin, Esquire
Dixie Lee Pritchard
Assistant Chief Counsel
Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] – Convicted of aggravated felony
The respondent, a native and citizen of Mexico, and lawful permanent resident of the United States, appeals an Immigration Judge’s September 18, 2009, decision finding that he was removable for having committed an aggravated felony under section 101(a)(43(F) of the Immigration and Nationality Act (the Act); 8 U.S.C. § 1101(a)(43)(F). The appeal will be dismissed.
On August 22, 2008, the respondent was convicted of evading arrest or detention with a motor vehicle, in violation of section 38.04 of the Texas Penal Code, and sentenced to 2 years incarceration. On the basis of this conviction, the DHS initiated the present removal proceedings, charging the respondent as removable as an alien convicted of an aggravated felony, a “crime of violence” under 18 U.S.C. § 16 for which the term of imprisonment is at least 1 year. See section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F). The Immigration Judge found the respondent’s offense was a crime of violence under 18 U.S.C. § 16, and ordered him removed from the United States.
In reaching his conclusion, the Immigration Judge found the offense of evading arrest or detention with a motor vehicle to be substantially equivalent in conduct and risk to the offense of unauthorized use of a motor vehicle under section 31.07 of the Texas Penal Code (I.J. at 3). The Immigration Judge noted that the United States Court of Appeals for the Fifth Circuit (Fifth Circuit), held in United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999), that the unauthorized use of a motor vehicle is a crime of violence. Therefore, because the offenses were substantially equivalent in conduct and risk, the Immigration Judge found the offense of evading arrest or detention with a motor vehicle to also be a crime of violence (I.J. at 3).
On appeal, the respondent argues that the Fifth Circuit has reversed its decision that the unauthorized use of a motor vehicle is a crime of violence. See Serna-Guerra v. Holder, No. 07-60634, 2009 WL 4609835 (5th Cir. 2009). Respondent’s brief at 2. The respondent argues that because the Immigration Judge relied upon grounds which are no longer valid in reaching his conclusion, the case should be remanded to the Immigration Judge for further review.
In reaching his conclusion, the Immigration Judge did rely on the Fifth Circuit’s holding in Galvan-Rodriguez, id. However, remand is not necessary as the Fifth Circuit has also recently issued a decision in United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009), which supports the Immigration Judge’s conclusion that the offense of evading arrest or detention with a motor vehicle is a crime of violence under 18 U.S.C. § 16(b). This Board retains independent judgment and discretion regarding pure questions of law and the application of a particular standard of law to the facts of a case. See Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008); see also 8 C.F.R. § 1003.1(d)(3).
Under 18 U.S.C. § 16(b), an offense is a crime of violence, if the offense is a felony 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 Fifth Circuit held in Harrimon, that the offense of evading arrest or detention with a motor vehicle is a violent felony under the Armed Career Criminal Act (ACCA) because it presented a serious potential risk of physical injury to another. Id. at 537. While Harrimon addressed the ACCA statute and not the Immigration and Nationality Act, the two statutes use only slightly different language. Specifically, under the ACCA, the risk must be a “serious potential risk” of physical injury to another, instead of the “substantial risk” under the Act. The Fifth Circuit considered the offense generically, and concluded that fleeing by vehicle is purposeful, violent and aggressive, and in the ordinary case, poses a serious risk of injury to others. Id. at 534. Having made these findings regarding the ordinary case, we conclude that the Fifth Circuit decision that the offense of evading arrest or detention with a motor vehicle is a violent felony, carries over to the definition of crime of violence under 18 U.S.C. § 16(b) of the Act. See James v. United States, 550 U.S. 192, 207-8 (2007). Therefore, the respondent’s offense is a “crime of violence” under 18 U.S.C. § 16(b) and, in view of the 2-year sentence he received, an aggravated felony under section 101(a)(43)(F). Accordingly, the following order will be entered.
ORDER: The appeal is dismissed.
Roger A. Pauley
FOR THE BOARD