Jose Pineda v. Matthew Whitaker

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 20, 2018
• Docket: 17-60074
• Status: Unpublished

Opinion

Case: 17-60074 Document: 00514731114 Page: 1 Date Filed: 11/20/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

FILED No. 17-60074 November 20, 2018 Summary Calendar Lyle W. Cayce Clerk JOSE LUIS PINEDA, also known as Marcelo Pineda,

Petitioner

v.

MATTHEW G. WHITAKER, ACTING U.S. ATTORNEY GENERAL,

Respondent

Petitions for Review of an Order of the Board of Immigration Appeals BIA No. A090 965 802

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before BARKSDALE, OWEN, and SOUTHWICK, Circuit Judges. * PER CURIAM: ∗∗ In Pineda v. Sessions, 709 F. App’x 315 (5th Cir. 2018), our court denied review of the Board of Immigration Appeals’ decision upholding an order for

*Judge Edward Prado, a member of the original panel in this case, retired from the court on 2 April 2018, and, therefore, did not participate in this opinion. Judge Southwick was substituted for Judge Prado.

∗* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. Case: 17-60074 Document: 00514731114 Page: 2 Date Filed: 11/20/2018

No. 17-60074 removal. As relevant here, our court held, pursuant to United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), that 18 U.S.C. § 16(b), under which the immigration judge concluded Pineda had been convicted of a “crime of violence”, was not unconstitutionally vague. On 17 April 2018, however, the Supreme Court, in Sessions v. Dimaya, 584 U.S. ---, 138 S. Ct. 1204, 1216 (2018), held § 16(b) is unconstitutionally vague. As a result, the Court, for the case at hand, granted certiorari, vacated, and remanded to our court “for further consideration in light of Sessions v. Dimaya”, with the judgment’s being entered on 2 November 2018. Pineda v. Sessions, No. 17-8655 (U.S. 1 October 2018). Accordingly, this case is REMANDED to the Board of Immigration Appeals for further proceedings consistent with Dimaya.