Fernando Escudero-Arciniega v. Eric Holder, Jr.
2012 U.S. App. LEXIS 25298
| 5th Cir. | 2012Background
- Escudero-Arciniega, a Mexican native and lawful permanent resident, pled guilty in NM to burglary of a vehicle under § 30-16-3(B) and to larceny in 2006.
- He was sentenced to five years after probation violations led to revocation and imprisonment.
- In 2010 DHS served an NTA charging removability under § 1227(a)(2)(A)(iii) based on burglary and larceny convictions.
- The IJ found Escudero removable under § 1227(a)(2)(A)(iii) due to an aggravated felony defined as a crime of violence in § 1101(a)(43)(F).
- Escudero sought asylum, withholding of removal, and CAT protection; the IJ denied these claims.
- BIA affirmed the aggravated-felony finding and dismissed asylum; it did not decide withholding but relied on the IJ’s alternative denial, and Escudero timely petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is NM burglary of a vehicle a crime of violence for aggravated felony purposes? | Escudero argues it is not a crime of violence. | The government contends it satisfies the crime of violence standard by risk of force against property. | Yes; burglary of a vehicle constitutes a crime of violence. |
| Does burglary for NM § 30-16-3(B) render Escudero an aggravated felon under § 1101(a)(43)(F)? | Escudero maintains not all elements meet the aggravated felony standard. | The government relies on 18 U.S.C. § 16(b) and precedent equating vehicle burglary with a crime of violence. | Escudero’s conviction qualifies as an aggravated felony. |
| If aggravated felony, are asylum, withholding, and CAT claims reviewable? | Escudero seeks review of these claims on the merits. | The aggravated felony finding precludes review of asylum/withholding/CAT and divests jurisdiction over those claims. | Precluded; court lacks jurisdiction to review these remaining claims; petition denied in part and dismissed in part. |
Key Cases Cited
- Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. 2000) (determines how to assess whether an offense is an aggravated felony using statute text)
- Omari v. Gonzales, 419 F.3d 303 (5th Cir. 2005) (de novo review of whether a predicate conviction is an aggravated felony)
- Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. 2006) (governs review of jurisdiction and standards for removal orders; distinguishes questions of law)
- Leocal v. Ashcroft, 543 U.S. 1 (U.S. 2004) (driving under the influence not a crime of violence; burglary jurisprudence discussed)
- French v. Allstate Indem. Co., 637 F.3d 571 (5th Cir. 2011) (orderliness principle; bound to follow prior precedent absent intervening law change)
- Santos v. Reno, 228 F.3d 591 (5th Cir. 2000) (burglary of a vehicle involves substantial risk of force against property)
- United States v. Ramos-Garcia, 95 F.3d 369 (5th Cir. 1996) (burglary of a vehicle as a crime of violence under § 16(b))
- United States v. Rodriguez-Guzman, 56 F.3d 18 (5th Cir. 1995) (burglary of a vehicle as a crime of violence under § 16(b))
- United States v. Delgado-Enriquez, 188 F.3d 592 (5th Cir. 1999) (precedent on assessing burglary-related offenses as crimes of violence)