Serna-Guerra v. Holder

Full title: Jose Angel SERNA-GUERRA, Petitioner v. Eric H. HOLDER, Jr., U.S. Attorney…

Court: United States Court of Appeals, Fifth Circuit

Date published: Dec 8, 2009

354 F. App'x 929 (5th Cir. 2009)

Opinion

No. 07-60634 Summary Calendar.

December 8, 2009.

Javier N. Maldonado, Law Office of Javier N. Maldonado, PC, San Antonio, TX, for Petitioner.

Keith Ian Mcmanus, Senior Litigation Counsel, John Clifford Cunningham, Edward C. Durant, Thomas Ward Hussey, Director, Anthony Cardozo Payne, Senior Litigation Counsel, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, Kenneth L. Pasquarell, Acting District Director, U.S. Immigration and Naturalization Service District Director's Office, San Antonio, TX, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals (A38 099 578).

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

ON REM. AND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:[fn*] [fn*] Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Petitioner Jose Angel Serna-Guerra, a lawful resident alien, was ordered removed for having been convicted of an "aggravated felony" under 8 U.S.C. § 1227(a)(2)(A)(iii). Specifically, the removal order was based on Serna-Guerra's 1986 conviction for the Texas offense of unlawful use of a vehicle ("UUV"), Tex. Pen. Code § 31.07(a). Because then-existing circuit precedent foreclosed Serna-Guerra's argument that his UUV conviction was not an "aggravated felony," we denied his petition for review. See Serna-Guerra v. Mukasey, 285 Fed.Appx. 110 (5th Cir. 2008). After Serna-Guerra petitioned for a writ of certiorari, the Supreme Court vacated our decision and remanded for further consideration in light of Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). See Serna-Guerra v. Holder, ___ U.S. ___, 129 S.Ct. 2764, 174 L.Ed.2d 268 (2009).

Under the Supreme Court's decisions in Chambers and Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), "the generic crime of violence or aggravated felony must itself involve purposeful, violent and aggressive conduct." United States v. Armendariz-Moreno, 571 F.3d 490, 491 (5th Cir. 2009). We held in Armendariz-Moreno that "[t]he risk of physical force may exist where the defendant commits the offense of unauthorized use of a vehicle, but the crime itself has no essential element of violent and aggressive conduct." Id. Accordingly, the Texas UUV offense is not an "aggravated felony" for purposes of 8 U.S.C. § 1227(a)(2)(A)(iii).

We therefore GRANT the petition for review, VACATE the order of removal, and REMAND to the BIA for further proceedings consistent with this opinion.