Santiago Diaz-Esparza v. Jefferson Sessions, III
697 F. App'x 338
| 5th Cir. | 2017Background
- Santiago Alejandro Diaz-Esparza, a Mexican national and lawful permanent resident, was ordered removed in 2015 based on an aggravated-felony conviction (evading arrest with a vehicle, Tex. Penal Code § 38.04) and a two-year sentence.
- The BIA dismissed his appeal of the removal order and his motion for reconsideration.
- Diaz-Esparza petitions for review, arguing his § 38.04 conviction is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) because it is not a crime of violence under 18 U.S.C. § 16(b).
- He also contends § 16(b) is unconstitutionally vague in light of Johnson v. United States.
- The Fifth Circuit has jurisdiction to review statutory and constitutional questions but generally lacks jurisdiction over removal orders based on aggravated felonies except for legal or constitutional claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 38.04 evading arrest with a vehicle is a crime of violence under § 16(b) (and thus an aggravated felony under § 1101(a)(43)(F)) | Diaz-Esparza: The offense does not meet § 16(b)’s substantial-risk standard | Government: The offense is categorically a § 16(b) crime of violence | Held: Offense qualifies as a § 16(b) crime of violence (aggravated felony) |
| Whether § 16(b) is facially void for vagueness under Johnson | Diaz-Esparza: § 16(b) is unconstitutionally vague post-Johnson | Government: § 16(b) remains constitutional; Fifth Circuit precedent upholds it | Held: § 16(b) is not facially void; precedent controls and forecloses the challenge |
| Whether § 16(b) is void as applied to Diaz-Esparza | Diaz-Esparza: Even if facially valid, § 16(b) cannot be applied to his conviction | Government: § 16(b) can be straightforwardly applied to § 38.04 evading-with-vehicle conviction | Held: As-applied challenge fails; § 16(b) applies to his conviction |
| Whether Johnson undermines Sanchez-Ledezma controlling precedent | Diaz-Esparza: Johnson renders Sanchez-Ledezma invalid | Government: Johnson addressed a different statutory residual clause and did not overrule Sanchez-Ledezma | Held: Johnson did not unsettle Sanchez-Ledezma; prior Fifth Circuit decisions remain controlling |
Key Cases Cited
- Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006) (jurisdictional limits on review of removal orders for aggravated felons)
- Arce-Vences v. Mukasey, 512 F.3d 167 (5th Cir. 2007) (whether a statute is an aggravated felony is a question of law)
- United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc) (§ 16 vagueness issue is a legal question; § 16(b) upheld)
- Sanchez-Ledezma v. United States, 630 F.3d 411 (5th Cir. 2010) (holding Texas evading-arrest-with-vehicle is a § 16(b) crime of violence)
- United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013) (rejecting Johnson-based attack on § 16)
- United States v. Traxler, 764 F.3d 486 (5th Cir. 2014) (discussing limits of Johnson’s reach to other statutory clauses)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (Supreme Court: ACCA residual clause is unconstitutionally vague)
Result: Petitions for review denied.