Jose Santos, Plaintiff-appellee, v. Janet Reno, U.S. Attorney General; Richard v. Cravener, District Director of the Houston District of the Immigration and Naturalization Service, Defendants-appellants, 228 F.3d 591 (5th Cir. 2000)

Texas Penal Code § 30.04, as applicable at the time of Santos's conviction and at the time of his commission of the offense, proscribed burglary of a vehicle as follows:

"(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.

(b) For purposes of this section, 'enter' means to intrude:

(1) any part of the body; or

(2) any physical object connected with the body.

(c) An offense under this section is a felony of the third degree." Tex. Penal Code Ann. § 30.04 (1987).

In 1993, the statute was amended to treat the offense as a Class A misdemeanor, effective September 1, 1994. See Tex. Penal Code Ann. § 30.04(c) (1994); see also Tex. Penal Code Ann § 30.04(d) (2000).

The charges against Santos, filed by the INS in 1996, alleged that he was deportable under 8 U.S.C. § 1251(a) (2) (A) (iii), which has since been transferred to 8 U.S.C. § 1227(a) (2) (A) (iii).

As amended by AEDPA § 440(d), 8 U.S.C. § 1182(c) provides that " [t]his subsection shall not apply to an alien who is deportable by reason of having committed any criminal offense covered in section 241(a) (2) (A) (iii) [now codified at 8 U.S.C. § 1227(a) (2) (A) (iii)] . . .." 8 U.S.C. § 1182(c) (1994). Because Santos was found to have committed an aggravated felony under 8 U.S.C. § 1227(a) (2) (A) (iii), he was subject to this limitation on discretionary relief.

28 U.S.C. § 2241 provides in part:

"(c) The writ of habeas corpus shall not extend to a prisoner unless-

(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or

(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment, or decree of a court or judge of the United States; or

(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or

(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order, or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or

(5) It is necessary to bring him into court to testify or for trial."

8 U.S.C. § 1252(g) reads:

"Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter."

In Reno v. American-Arab Anti-Discrimination Commission, 119 S. Ct. 936 (1999), the Supreme Court explained that § 1252(g) was not a general bar, but rather limited judicial review only to a narrow class of discretionary executive decrees, decisions or actions to commence proceedings, adjudicate cases, or execute removal orders. See id. at 943.

We then considered, and rejected, Requena-Rodriguez's claims that AEDPA's elimination of discretionary relief for deportable aliens was impermissibly retroactive and violated equal protection. See id. at 307-10; see also Alfarache v. Cravener, 203 F.3d 381, 383-85 (5th Cir. 2000) (per curiam), cert denied, ___ U.S. ___, 121 S. Ct. 46, ___ L. Ed. 2d ___ (2000) (holding that AEDPA's limits on discretionary relief were not impermissibly retroactive and did not violate equal protection or due process, and that AEDPA's expanded definition of "aggravated felony" applied to pre-AEDPA convictions).

IIRIRA § 309(c), reprinted in the statutory notes to 8 U.S.C. § 1101, reads:

"In the cases described in paragraph (1) in which a final order of exclusion or deportation is entered more than 30 days after the date of the enactment of this Act, notwithstanding any provision of section 106 of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act) to the contrary-

(A) in the case of judicial review of a final order of exclusion, subsection (b) of such section shall not apply and the action for judicial review shall be governed by the provisions of subsections (a) and (c) of such in the same manner as they apply to judicial review of orders of deportation;

(B) a court may not order the taking of additional evidence under section 2347(c) of title 28, United States Code;

(C) the petition for judicial review must be filed not later than 30 days after the date of the final order of exclusion or deportation;

(D) the petition for review shall be filed with the court of appeals for the judicial circuit in which the administrative proceedings before the special inquiry officer or immigration judge were completed;

(E) there shall be no appeal of any discretionary decision under section 212(c), 212(h), 212(i), 244, or 245 of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act);

(F) service of the petition for review shall not stay the deportation of an alien pending the court's decision on the petition, unless the court orders otherwise; and

(G) there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a) (2) or section 241(a) (2) (A) (iii), (B), (C), or (D) of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act), or any offense covered by section 241(a) (2) (A) (ii) of such Act (as in effect on such date) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 241(a) (2) (A) (i) of such Act (as so in effect)."

8 U.S.C. § 1105a(c) provides in pertinent part:

"No petition for review or for habeas corpus shall be entertained if the validity of the order has been previously determined in any civil or criminal proceeding, unless the petition presents ground which the court finds could not have been presented in such prior proceeding, or the court finds that the remedy provided by such prior proceeding was inadequate or ineffective to test the validity of the order."

In Garcia, we addressed whether the § 2241 petition filed by Garcia and his family raised any new grounds which could not have been raised in a prior proceeding. The Garcias argued that three such grounds did exist. With regard to the first ground, alleged untimeliness of the INS's appeal to the BIA, we concluded that it could have been raised in Garcia's petition for review. See id. at 1181. The second ground, procedural errors committed by the INS during the pendency of his deportation proceedings deprived him of a fair hearing, "could have been considered by the [BIA] and by this Court on the prior review." Id. at 1182. And, as to third claim, the failure to include Mrs. Garcia and Garcia's children as parties in the deportation proceedings meant that their interests were not adjudicated or considered, we held that their interests were recognized and considered before the IJ and the BIA and that they lacked standing to challenge Garcia's deportation order by a petition for habeas corpus. See id. at 1182-83. Accordingly, we affirmed the district court's denying the petition and dismissing the cause.

Santos's deportation order required that only three elements be established: (1) he was an alien; (2) he was convicted of an aggravated felony; and (3) the conviction occurred after he was admitted. See 8 U.S.C. § 1227(a) (2) (A) (iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable.").

Although not contested by Santos, we note that in ruling on the INS's motion to dismiss his petition, we had jurisdiction, and were required, to decide whether burglary of a vehicle constitutes an aggravated felony, as the resolution of that issue was a jurisdictional fact. See Camacho-Marroquin, 188 F.3d at 651 (citing Yang, 109 F.3d at 1192); Lopez-Elias v. Reno, 209 F.3d 788 at 791 & n.3 (5th Cir. 2000); Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. 2000); Okoro v. INS, 125 F.3d 920, 925 & n.10 (5th Cir. 1997); Anwar v. INS, 116 F.3d 140, 143-44 (5th Cir. 1997). See also Scherbatskoy v. Halliburton Co., 125 F.3d 288, 290 (5th Cir. 1997) ("This court necessarily has the inherent jurisdiction to consider it own jurisdiction.") (footnote omitted); 13A Charles Alan Wright et al., Federal Practice and Procedure § 3536, at 535 (2d ed. 1984) ("'Jurisdiction to determine jurisdiction' refers to the power of a court to determine whether it has jurisdiction over the parties to and the subject matter of a suit. If the jurisdiction of a federal court is questioned, the court has the power and the duty, subject to review, to determine the jurisdictional issue.") (footnotes omitted).

Because Requena-Rodriguez conceded that his convictions were aggravated felonies rendering him deportable, see Requena-Rodriguez, 190 F.3d at 302, we did not have occasion to address whether 8 U.S.C. § 1105a(c) would preclude a § 2241 habeas petition challenging the BIA's conclusion that a criminal offense constitutes an aggravated felony.

Even were we to conclude that the district court had jurisdiction to consider Santos's § 2241 petition, we would reverse the district court's grant of habeas relief, because Santos does not have a substantial likelihood of prevailing on the merits of his argument that his Texas state offense of burglary of a vehicle is not an aggravated felony qualifying him for deportation. After the district court granted Santos habeas relief, we decided Lopez-Elias v. INS, 209 F.3d 788 (5th Cir. 2000), which forecloses Santos's argument.

The INS had ordered Lopez-Elias deported as an alien who had committed an aggravated felony, burglary of a vehicle in Texas. See id. at 790. Lopez-Elias then filed a petition for review in this Court, and the INS moved for this Court to dismiss the petition on the basis that we were without jurisdiction to consider a petition for review from an alien who was ordered deportable for having committed an aggravated felony, as required under IIRIRA's permanent rules. See id. We then proceeded to consider whether Lopez-Elias's conviction of burglary of a vehicle was an aggravated felony under 8 U.S.C. § 1101(a) (43). See id. at 791. Although we concluded that "burglary of a vehicle" did not constitute a theft or burglary offense under 8 U.S.C. § 1101(a) (43) (G), we did hold that "burglary of a vehicle" qualified as an aggravated felony under 8 U.S.C. § 1101(a) (43) (F), which provides that the term "aggravated felony" includes "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." See Lopez-Elias, 209 F.3d at 791-93. Because burglary of a vehicle involves "a substantial risk" that physical force may be used against another's property, it is a "crime of violence" as defined in 18 U.S.C. § 16. See id. at 792 (" [B]urglary of a vehicle does constitute a 'crime of violence.'"). Moreover, a conviction for burglary of a vehicle carries a term of imprisonment of at least one year and, therefore, constitutes an "aggravated felony" under 8 U.S.C. § 1101(a) (43) (F), justifying deportation under 8 U.S.C. § 1227(a) (2) (A) (iii). See 8 U.S.C. § 1227(a) (2) (A) (iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable.").

We determined that burglary of a vehicle was an aggravated felony despite the Texas legislature's reclassification of burglary of a vehicle as a misdemeanor effective September 1, 1994 (after Lopez-Elias's conviction but before his removal proceedings commenced), because " [h]ow Texas characterizes the offense does not control federal immigration law . . . for federal law looks only to the term of imprisonment [which must be at least one year], and not state law, to ascertain whether the offense is a 'felony.'" Lopez-Elias, 209 F.3d at 792 n.6 (citations omitted). Even looking to Texas law, the reclassification does not aid Lopez-Elias, or Santos, who both committed their crimes and were convicted before the effective date of the amendment-September 1, 1994. The 1993 act amending Texas Penal Code § 30.04 provides that:

"(a) The change in law made by this article applies only to an offense committed on or after the effective date of this article. For purposes of this section, an offense is committed before the effective date of this article if any element of the offense occurs before the effective date.

(b) An offense committed before the effective date of this article is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose." Act effective Sept. 1, 1994, 73d Leg., R.S., ch. 900, § 1.18, 1993 Tex. Gen. Laws 3586, 3705.

Texas courts have interpreted the amendment to mean that convictions entered before the 1994 amendment remain felony convictions and did not become Class A misdemeanors with the passage of the amendment. See Than v. State, 918 S.W.2d 106, 108 (Tex. App.--Fort Worth 1996, no pet.); Delgado v. State, 908 S.W.2d 317, 318-19 (Tex. App.--El Paso 1995, pet. ref'd).

In the present case, Santos was convicted of burglary of a vehicle and sentenced to five years' deferred adjudication. Therefore, his offense constitutes a crime of violence under 8 U.S.C. § 1101(a) (43) (F). See Lopez-Elias, 209 F.3d at 792-93. Accordingly, Santos is deportable under 8 U.S.C. § 1227(a) (2) (A) (iii) for having committed an aggravated felony. See id.