Case: 17-60212 Document: 00515259253 Page: 1 Date Filed: 01/06/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED January 6, 2020 No. 17-60212 Lyle W. Cayce Clerk MIGUEL ANGEL CHAVEZ-MERCADO, Petitioner v. WILLIAM BARR, U. S. ATTORNEY GENERAL, Respondent Appeal from the Board of Immigration Appeals Before OWEN, Chief Judge, and DENNIS and SOUTHWICK, Circuit Judges. JAMES L. DENNIS, Circuit Judge: Miguel Angel Chavez-Mercado (Chavez), a native and citizen of Mexico, seeks review of a Board of Immigration Appeals (BIA) order dismissing an appeal from an Immigration Judge’s (IJ) denial of his motion to terminate removal proceedings and order of removal. We DENY the petition for review in part and DISMISS in part for lack of jurisdiction. I Chavez entered the United States illegally in 1999 and adjusted to permanent resident status in 2005. On December 8, 2014, he was convicted of the Texas offenses of evading arrest with a motor vehicle under Tex. Penal Code § 38.04(b)(2)(a), Case No. CR-14-0083, and burglary of a habitation under Case: 17-60212 Document: 00515259253 Page: 2 Date Filed: 01/06/2020 No. 17-60212 Tex. Penal Code § 30.02(c)(2), Case No. CR-14-0084, Chavez was sentenced to a four-year prison term in each case, to run concurrently. In June 2015, while in Texas state custody, the Department of Homeland Security (DHS) served Chavez with a Notice to Appear (NTA) charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony; namely, a crime of violence, as defined under 18 U.S.C. § 16(b), for which the term of imprisonment is at least one year. See 8 U.S.C. § 1101(a)(43)(F). The sole conviction listed in the NTA was Chavez’s 2014 conviction for evading arrest with a vehicle. The IJ held that Chavez’s evading arrest conviction qualified as a crime of violence, and thus an aggravated felony, and ordered Chavez removed. However, the BIA terminated the proceedings against Chavez in light of our then-existing panel opinion in United States v. Gonzalez-Longoria, 813 F.3d 225 (5th Cir. 2016), which held that § 16(b)’s definition of a crime of violence was unconstitutionally vague. 1 The BIA also noted that the DHS had not filed any other charge of removability or otherwise filed a brief in opposition to Chavez’s appeal. The DHS did not seek reconsideration of the BIA’s decision and instead issued a new NTA against Chavez based on his December 2014 conviction for burglary of a habitation, which it alleged was also an aggravated felony. This time, the DHS charged Chavez with removability under § 1227(a)(2)(A)(iii) for having been convicted of a “theft offense . . . or burglary offense” for which the term of imprisonment is at least one year. See § 1101(a)(43)(G). The IJ purportedly declined to decide whether the burglary conviction constituted a theft or burglary offense under § 1101(a)(43)(G), but determined 1 The BIA dismissed the proceedings against Chavez despite our decision to rehear the case en banc. See Gonzalez-Longoria, 831 ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals