Jose Serna-Guerra v. Michael Mukasey ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 8, 2009
No. 07-60634 Charles R. Fulbruge III
Summary Calendar Clerk
JOSE ANGEL SERNA-GUERRA
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
(A38 099 578)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
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-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 07-60634
Guerra’s argument that his UUV conviction was not an “aggravated felony,” we
denied his petition for review. See Serna-Guerra v. Mukasey, 285 F. App’x 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, 129 S. Ct. 687 (2009). See Serna-Guerra v.
Holder, 129 S. Ct. 2764 (2009).
Under the Supreme Court’s decisions in Chambers and Begay v. United
States, 128 S. Ct. 1581 (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.
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