De La Paz Sanchez v. Gonzales

473 F.3d 133, 206 F. App'x 352, 206 Fed. Appx. 352, 2006 U.S. App. LEXIS 28252, 2006 WL 3598262

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 15, 2006
• Docket: 05-60973
• Status: Unpublished

Opinion

PER CURIAM: *

Jesus De La Paz Sanchez (Sanchez) petitions for review of an order by the Board of Immigration Appeals (BIA). Sanchez contends that the BIA erred when it found him removable based on his Texas conviction for unauthorized use of a motor vehicle (UUMV). Sanchez contends that his UUMV offense was not an aggravated felony because it does not constitute a crime of violence under 18 U.S.C. § 16(b). He also asserts that the BIA erred when it denied his request for a waiver of removal under former § 212(c) of Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c).

As a threshold matter, we have jurisdiction to review Sanchez’s constitutional claims and questions of law pursuant to the REAL ID Act. ** See 8 U.S.C. § 1252(a)(2)(D); Hernandez-Castillo v. Moore, 436 F.3d 516, 518 (5th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 40, 166 L.Ed.2d 18, 2006 WL 849672 (U.S. Oct. 2, 2006) (No. 05-1251). The BIA’s factual findings are reviewed for substantial evidence. See Chun v. INS, 40 F.3d 76, 78 (5th Cir.1994). The substantial evidence standard requires that the decision be based on the evidence presented and that the decision be substantially reasonable. Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.1996). Although questions of law are reviewed de novo, courts should defer to the BIA’s interpretations of statutes and regulations that the BIA administers. Fonseca-Leite v. INS, 961 F.2d 60, 62 (5th Cir.1992).

Sanchez’s argument that Texas’s UUMV offense does not constitute a crime of violence under 18 U.S.C. § 16(b) is foreclosed by United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir.1999). See also In re Brieva-Perez, 23 I. & N. Dec. 766, 767-70 (BIA 2005) (Texas UUMV conviction was a crime of violence under § 16(b) and therefore an aggravated felony). Our decision in United States v. Charles, 301 F.3d 309, 314 (5th Cir.2002) (en banc), expressly limited Galvan-Rodriguez’s holding to its property aspects and to § 16(b) cases; thus Galvan-Rodriguez remains applicable to Sanchez.

We also reject Sanchez’s argument that he is entitled to seek discretionary relief pursuant to former § 212(c) of the INA. Deportable aliens are eligible for relief under § 212(c) only if their offenses have a statutory counterpart in § 101(a)(43)(F) of the INA, 8 U.S.C. § 1101(a)(43)(F). Brieva-Perez, 23 I. & N. Dec. at 771-73. Sanchez was ordered removed as an aggravated felon who had committed a crime of violence. There is no comparable crime-of-violence ground of excludability. Id. Sanchez is therefore ineligible for § 212(c) relief. Sanchez’s petition for review is DENIED.

* 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.

** REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 231, 302-11 (May 11, 2005).