Mario Mata-Chavarria v. Eric Holder, Jr. , 537 F. App'x 306 ( 2013 )

Case: 12-60412 Document: 00512133974 Page: 1 Date Filed: 02/04/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 4, 2013
No. 12-60412
Summary Calendar Lyle W. Cayce
Clerk
MARIO ANDRES MATA-CHAVARRIA,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A036 663 766
Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
Mario Andres Mata-Chavarria, native and citizen of Mexico, was ordered
removed, pursuant to his conviction under Texas Penal Code § 31.03(e)(4)(A)
(theft), which was deemed an aggravated felony under 8 U.S.C. § 1101(a)(43)(G)
by both the Immigration Judge and the Board of Immigration Appeals (BIA). In
his petition for review, Mata contends his prior conviction does not qualify as an
aggravated felony subjecting him to deportation under 8 U.S.C.
§ 1227(a)(2)(A)(iii).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-60412 Document: 00512133974 Page: 2 Date Filed: 02/04/2013
No. 12-60412
Although 8 U.S.C. § 1252(a)(2)(C) strips our court of jurisdiction to review
orders of removability based on an alien’s commission of an aggravated felony,
we may consider related questions of law, including whether a given offense is
a qualifying felony. E.g., Martinez v. Mukasey, 519 F.3d 532, 538 (5th Cir. 2008)
(whether bank-fraud conviction was an aggravated felony constitutes reviewable
question of law). Because the BIA’s decision did not adopt the Immigration
Judge’s, we review only the former. E.g., Bouchikhi v. Holder, 676 F.3d 173, 176
(5th Cir. 2012).
To determine whether a state statute states a qualifying theft offense
under § 1101(a)(43)(G), we compare the state statute at issue to our “generic
definition of a theft offense, which is a taking of property or an exercise of control
over property without consent with the criminal intent to deprive the owner of
rights and benefits of ownership, even if such deprivation is less than total or
permanent”. Nolos v. Holder, 611 F.3d 279, 285 (5th Cir. 2010) (internal
quotation marks and citation omitted). The state statute provides in relevant
part: “A person commits an offense if he unlawfully [without the owner’s
effective consent] appropriates property with intent to deprive the owner of
property. . . . [A]n offense under this section is a state jail felony if the value of
the property stolen is $1,500 or more but less than $20,000”. TEX. PENAL CODE
ANN. § 31.03(a), (b)(1), & (e)(4)(A).
Pursuant to this analysis, the BIA did not err in concluding the statute
states a crime qualifying as a theft under § 1101(a)(43)(G), as the state statute
comports with our generic theft definition. E.g., id.; see also United States v.
Benitez-Villafuerte, 186 F.3d 651, 659 (5th Cir. 1999).
DENIED.
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