Lead Opinion
In 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.
In 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,
BACKGROUND
On 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
On 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).
Garcia 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.
STANDARD AND SCOPE OF REVIEW
“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,
The 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,
DISCUSSION
Garcia 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,
I.
“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. —,
The 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. —,
*844 addressing] 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.
Moncrieffe,
II.
In 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.
We 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,
In 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.
In 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.”
Three 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,
The 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.,
We 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).
CONCLUSION
For the foregoing reasons, we DENY Garcia’s petition for review.
. The NTA also alleged that Garcia was subject to removal under 8 U.S.C. § 1182(a)(2)(C) because he had been convicted of distributing marijuana in violation of section 30-31 — 22(A) of the New Mexico Statutes Annotated. Both the IJ and the BIA agreed and both concluded that Garcia's marijuana-distribution conviction rendered him ineligible to apply for cancellation of removal. Because we conclude that Garcia's auto-burglary conviction renders him ineligible to apply for cancellation of removal, we need not consider Garcia's separate argument that his marijuana-distribution conviction does not constitute a conviction for an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). Accordingly, we decline to address it.
. We also note that we generally lack “jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in [8 U.S.C. § ] 1182(a)(2).” 8 U.S.C. § 1252(a)(2)(C). In this case, the NTA alleged that Garcia was subject to removal under 8 U.S.C. § 1182(a)(2)(C) as a consequence of his New Mexico marijuana-distribution conviction, and the IJ and the BIA both agreed. Nevertheless, our jurisdiction over “questions of law raised upon a petition for review” is not barred. See id. § 1252(a)(2)(D); Alvarado de Rodriguez v. Holder,
. Although Lopez-Elias addressed a conviction under Texas's auto-burglary statute, rather than a conviction under New Mexico’s auto-burglary statute, the distinction is immaterial for purposes of our analysis because the elements of both statutes are virtually identical. Compare Tex. Penal Code Ann. § 30.04(a) ("A person commits an offense if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft.”), with N.M. Stat. Ann. § 30-16-3(B) ("Any 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.”).
. By contrast, the government has raised this argument in Garcia’s case.
Concurrence Opinion
specially concurring:
I 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”).
I write separately for two reasons. First, Lopez-Elias v. Reno,
The 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).”
More 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. —,
But 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.
To 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,
The Fourth Circuit applied the categorical approach in precisely this manner in Mondragon v. Holder,
Unlike 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,
A 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.
. , For simplicity's sake, I use "categorical approach” here to refer to both the categorical and modified categorical approaches, since the latter "merely helps implement the categorical approach when a [petitioner] was convicted of violating a divisible statute.” See Descamps v. United States, - U.S. -,
. The convictions in both Lopez-Elias and this case satisfied the minimum one-year imprisonment requirement for crimes of violence. See 8 U.S.C. § 1101 (a)(43)(F). Lopez-Elias was sentenced to four years imprisonment under Texas law. Lopez-Elias,
. The Supreme Court's earlier categorical approach jurisprudence also concerns situations in which the government bears the burden of proof. See Taylor v. United States,
. Moreover, no party submits, and nothing about the statute suggests, that a noncategorical, "circumstance-specific” approach would apply. See 8 U.S.C. § 1229b(a)(3) (providing that Attorney General "may cancel removal” if noncitizen "has not been convicted of any aggravated felony”); see generally Nijhawan v. Holder,
. While irrelevant to Mondragon's application of the categorical approach, the Fourth Circuit's ''crime of violence” definition is narrower than ours, which includes any offense that creates a "substantial risk that physical force will be used against the person or property of another in the course of committing the offense.” United States v. Delgado-Enriquez,
. As the majority correctly observes, because (and only because) the New Mexico statute is divisible, the court can consider the charging document under the modified categorical approach. Ante at 844.
. Likewise, under the majority’s approach, both the "most” and "least” of the criminalized acts would constitute an attempted theft offense under 8 U.S.C. § 1101(a)(43)(U). See ante at 846 ("[W]e conclude that Garcia took the requisite substantial step toward the commission of a theft offense....”).
. Like the Virginia statute in Mondragon, the Georgia statute analyzed by the Supreme Court in Moncrieffe illustrates the potential for starkly different outcomes under the "most” and "least of the acts” approaches. To be clear, Moncrieffe concerned a nonciti-zen’s removability, which the Government bears the burden of proving, so the Supreme Court had no occasion to consider the petitioner’s burden of proving eligibility for discretionary relief. But if such eligibility had been at issue in Moncrieffe, the statute would have presented the same problem as that resolved by the Fourth Circuit in Mondragon. The Moncrieffe Court explained that "the fact of a conviction for possession with intent to distribute marijuana, standing alone, does not reveal whether either remuneration or more than a small amount of marijuana was involved,” both of which elements are required for concluding the offense was not an aggravated felony under the INA, which incorporates the felony definition under the Controlled Substances Act ("CSA”). Moncrieffe,
. Sarmientos followed the Eleventh Circuit in Donawa in holding that a noncitizen was not ineligible for discretionaiy relief, since the “least of the acts” criminalized by a state law under which he was convicted did not constitute an aggravated felony.