Adrian Garcia v. Eric Holder, Jr.
2014 U.S. App. LEXIS 12363
| 5th Cir. | 2014Background
- Garcia, a Mexico native and U.S. permanent resident, was convicted in 1998 in New Mexico for auto burglary under N.M. § 30-16-3(B), a fourth-degree felony.
- In 2010 DHS issued a Notice to Appear charging removability under 8 U.S.C. § 1182(a)(2)(A)(i)(I) based on the auto-burglary conviction as a crime involving moral turpitude.
- The IJ found Garcia removable and determined he was ineligible for cancellation of removal because the auto-burglary conviction qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43).
- The BIA affirmed, concluding Garcia’s auto-burglary conviction was an aggravated felony under § 1101(a)(43)(U) (attempt) despite Lopez-Elias reasoning on the G.O.A. issue, making him ineligible for cancellation.
- Garcia challenged only the aggravated felony determination (not the removability finding); the Fifth Circuit joined other circuits in holding the offense qualifies as an attempted theft under § 1101(a)(43)(U) and denied the petition for review.
- The court expressly noted the matter involves a divisibility issue with the statute and applied the modified categorical approach to identify which elements played a part in Garcia’s conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the auto-burglary conviction is an aggravated felony | Garcia argues it is not an attempted theft offense | Government contends the conviction fits § 1101(a)(43)(U) as an attempted theft | Yes; Garcia’s auto-burglary conviction constitutes an aggravated felony under § 1101(a)(43)(U) |
| Whether the New Mexico statute is divisible and supports the modified categorical approach | N/A | Statute is divisible; allows analysis of elements via modified categorical approach | Yes; statute divisible; modified categorical approach applied to determine elements |
| Burden of proof for eligibility for cancellation of removal | Garcia bears burden to prove he did not commit an aggravated felony | Government bears burden when proving removability; for relief, alien must prove eligibility | Alien bears burden for eligibility; even so, the most acts meet aggravated felony under the statute; denial affirmed |
Key Cases Cited
- Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. 2000) (auto-burglary and its relation to crime of violence)
- Venzor-Granillo, 668 F.3d 1224 (10th Cir. 2012) (auto burglary convicted as attempted theft under § 1101(a)(43)(U))
- Ngaeth v. Mukasey, 545 F.3d 796 (9th Cir. 2008) (unauthorized entry of a vehicle with intent to theft = attempted theft under § 1101(a)(43)(U))
- Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001) (auto burglary with intent to steal fits attempted theft under § 1101(a)(43)(U))
- Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S. 2013) (categorical approach to determine aggravated felony)
- Descamps v. United States, 133 S. Ct. 2276 (U.S. 2013) (divisible statutes and modified categorical approach)
- Mondragon v. Holder, 706 F.3d 535 (4th Cir. 2013) (burden-shifting in discretionary relief; application of categorical approach)
- Donowa v. U.S. Attorney General, 735 F.3d 1275 (11th Cir. 2013) (application of categorical approach to relief cases)
- Sarmientos v. Holder, 742 F.3d 624 (5th Cir. 2014) (discretionary relief burden issues in the circuit)