Vaca-Tellez, Jose M. v. Mukasey, Michael B. , 540 F.3d 665 ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2397
JOSE M. V ACA-T ELLEZ, also
known as JOSE V ACA, also
known as JOSE B ACA,
Petitioner,
v.
M ICHAEL B. M UKASEY, Attorney
General of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
A35-623-368
____________
A RGUED A PRIL 4, 2008—D ECIDED S EPTEMBER 2, 2008
____________
Before P OSNER, K ANNE and R OVNER, Circuit Judges.
R OVNER, Circuit Judge. Jose Manuel Vaca-Tellez is a
citizen of Mexico who was admitted to the United States
as a lawful, permanent resident alien in 1978. In 2002,
he committed a felony that led to the commencement of
removal proceedings by U.S. Immigration and Customs
Enforcement (“ICE”). An Immigration Judge (“IJ”) ordered
2 No. 07-2397
that Vaca-Tellez be removed to Mexico, and the Board of
Immigration Appeals (“BIA”) affirmed that decision. Vaca-
Tellez petitioned this court for review. Because there
were no legal errors in the decision, we deny the petition
for review.
I.
In July 2002, the State of Illinois charged Vaca-Tellez
with burglary in violation of 720 ILCS 5/19-1(a). The
criminal information specified that Vaca-Tellez “committed
the offense of burglary in that he, without authority,
knowingly entered into a motor vehicle, to wit: a 1995
Chevrolet, property of Suzanna Alaniz, with the intent to
commit the offense of theft, therein, in violation of Chapter
720, Act 5, Section 19-1(a)[.]” This crime is characterized
under Illinois law as a Class 2 felony. See 720 ILCS 5/19-
1(b). For this offense, a sentencing judge may impose,
alone or in combination, a period of probation, a fine,
restitution, and a term of imprisonment, among other
things. 730 ILCS 5/5-5-3(b). Any term of imprisonment
for a Class 2 felony may not be less than three years nor
more than seven years. 730 ILCS 5/5-8-1(a)(5). In August
2002, Vaca-Tellez pled guilty to that charge and was
sentenced to eighteen months’ probation. 1 Vaca-Tellez’s
adherence to the conditions of his probation was unfortu-
1
Although the Certified Statement of Conviction/Disposition
from the Circuit Court of Cook County does not specify the
charge to which Vaca-Tellez pled guilty, the charge of burglary
detailed in the information was the only pending charge that
appears on that document.
No. 07-2397 3
nately short-lived. On September 16, 2002, a scant six
weeks after the guilty plea, he was charged with vio-
lating his probation. A charge of violating probation was
entered again on November 12, 2002, and a warrant was
issued for his arrest. A little more than three years passed
before law enforcement again caught up with Vaca-Tellez.
On January 31, 2006, Vaca-Tellez pled guilty to the proba-
tion violation.2 Illinois law provides that, for a violation
of probation, a court may continue the existing sentence
or impose any sentence that was available under section
5/5-5-3(b). 730 ILCS 5/5-6-4(e). The court revoked Vaca-
Tellez’s probation and sentenced him to a term of three
years’ imprisonment, the minimum term allowed for the
crime of burglary.
Approximately one year later, ICE commenced removal
proceedings against Vaca-Tellez by filing a Notice to
Appear (“NTA”) with the Immigration Court. The NTA
specified that Vaca-Tellez was subject to removal because
he had been convicted of an aggravated felony as defined
by 8 U.S.C. §§ 1101(a)(43)(G) and 1101(a)(43)(U). The
original NTA charged that, on January 31, 2006, Vaca-
Tellez had been convicted “for the offense of intent to
commit the offense of theft” in violation of 720 ILCS 5/19-
2
The Certified Statement again did not specify the charge, but
at that point in the proceedings, the probation violation was
the only charge pending. The court revoked the probation the
same day the guilty plea was entered, and sentenced Vaca-Tellez
to three years’ imprisonment, both strong indicators that Vaca-
Tellez admitted guilt to violating the conditions of probation
from his sentence for burglary.
4 No. 07-2397
1(a). With the agreement of the parties, the IJ amended
the NTA to state that, on August 6, 2002, Vaca-Tellez
was convicted of the offense of burglary in violation of
720 ILCS 5/19-1(a). Vaca-Tellez admitted that he had
been convicted of burglary but denied that he was
subject to removal as an aggravated felon. The IJ relied on
this court’s decision in United States v. Martinez-Garcia,
268 F.3d 460 (7th Cir. 2001), in holding that a burglary
with intent to commit theft under the Illinois statute was
an aggravated felony because it was an “attempted theft
offense.” The IJ rejected Vaca-Tellez’s contention that
his conviction did not qualify as a felony because he
originally was sentenced only to probation. The IJ noted
that the Illinois statute allowed the state court judge to re-
sentence the defendant on the original charge for any
violation of probation, and the state court had done
so here, imposing a three-year term of imprisonment. The
BIA dismissed Vaca-Tellez’s subsequent appeal, agreeing
with the IJ that the Illinois crime of burglary with intent
to commit theft was an aggravated felony under Martinez-
Garcia. The BIA also agreed that Vaca-Tellez’s three-year
sentence for violating his original sentence of probation
satisfied the statutory requirement for a sentence in
excess of one year on the original conviction. Vaca-Tellez
petitions this court for review.
II.
In his petition, he contends that the IJ incorrectly con-
strued his conviction for burglary to an automobile as
an aggravated felony. He argues that the BIA
No. 07-2397 5
mischaracterized his conviction as one for attempted
theft. He also asserts that Martinez-Garcia is distinguish-
able and not determinative of his claim. The govern-
ment contends that we lack jurisdiction over Vaca-Tellez’s
petition because 8 U.S.C. § 1252(a)(2)(C) deprives this
court of jurisdiction to review petitions filed by aliens
who are subject to removal as aggravated felons. We
begin by addressing our jurisdiction to review the claim.
Our jurisdiction is limited because the “INA, as amended
by the Illegal Immigration Reform and Immigrant Respon-
sibility Act of 1996, strips the judiciary of authority to
review any final order of removal against an alien who
is removable by reason of having committed an ag-
gravated felony.” Gattem v. Gonzales, 412 F.3d 758, 762 (7th
Cir. 2005). See also 8 U.S.C. §§ 1252(a)(2)(C),
1227(a)(2)(A)(iii). The BIA determined that Vaca-Tellez
committed an aggravated felony but we nonetheless
retain the authority to determine our jurisdiction. Eke v.
Mukasey, 512 F.3d 372, 378 (7th Cir. 2008); Gattem, 412
F.3d at 762; Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th
Cir. 2000). Moreover, the REAL ID Act of 2005 amended
section 1252(a)(2)(C) of the INA to allow this court to
review constitutional claims or questions of law. See 8
U.S.C. § 1252(a)(2)(D); Eke, 512 F.3d at 378 (stating the
REAL ID Act “put an end to any doubt” that we are
authorized to consider the question whether DHS cor-
rectly determined that a petitioner’s convictions were
aggravated felonies for the purposes of the immigration
laws). Thus, to the extent that the BIA’s holding turned
on its construction of the immigration statute at issue, it
presents a question of law that Congress has given us the
6 No. 07-2397
power to address. Gattem, 412 F.3d at 762. See also Yang
v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997) (“[w]hen judicial
review depends on a particular fact or legal conclusion,
then a court may determine whether that condition ex-
ists.”). We therefore have jurisdiction to determine
whether, as a matter of law, Vaca-Tellez is removable as
an aggravated felon, and in particular whether the
crime for which he was convicted in Illinois qualifies
him for that status. Eke, 512 F.3d at 378; Gattem, 412 F.3d at
762. See also Moreno-Cebrero v. Gonzales, 485 F.3d 395, 398
(7th Cir. 2007) (where a petition from a person ordered
removed as an aggravated felon presents a straight-for-
ward question of law, the court has jurisdiction over
the petition). Our review of the determination that Vaca-
Tellez committed an aggravated felony is de novo. Eke,
512 F.3d at 378; Martinez-Garcia, 268 F.3d at 464.
Vaca-Tellez first contends that his removal order is not
supported by clear and convincing evidence that he is
subject to removal as an aggravated felon as that term
is defined by 8 U.S.C. §§ 1101(a)(43)(G) and (U) (here-
after “Subsection G” and “Subsection U”). Under Subsec-
tion G, an aggravated felony consists of “a theft offense
(including receipt of stolen property) or burglary offense
for which the term of imprisonment [is] at least one
year.” Subsection U adds that an attempt or conspiracy
to commit any of the listed offenses, including a theft
offense, also qualifies as an aggravated felony. The gov-
ernment sought to remove Vaca-Tellez as an aggravated
felon on the theory that his conviction for burglary to a
motor vehicle with intent to commit a theft therein is an
attempted theft offense for the purposes of immigration
No. 07-2397 7
law. We have previously defined the term “theft offense”
for the purposes of the INA as “requiring the taking of
property (exercise of control over property), without the
owner’s consent, with the intent to temporarily or perma-
nently deprive the owner of the rights and benefits of
ownership.” Martinez-Garcia, 268 F.3d at 465. See also
Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir.
2001). Under Illinois law, a person commits theft when
he knowingly:
(1) Obtains or exerts unauthorized control over prop-
erty of the owner; or
(2) Obtains by deception control over property of the
owner; or
(3) Obtains by threat control over property of the
owner; or
(4) Obtains control over stolen property knowing the
property to have been stolen or under such circum-
stances as would reasonably induce him to believe
that the property was stolen; or
(5) Obtains or exerts control over property in the
custody of any law enforcement agency which is
explicitly represented to him by any law enforcement
officer or any individual acting in behalf of a law
enforcement agency as being stolen, and
(A) Intends to deprive the owner permanently of
the use or benefit of the property; or
(B) Knowingly uses, conceals or abandons the
property in such manner as to deprive the
owner permanently of such use or benefit; or
8 No. 07-2397
(C) Uses, conceals, or abandons the property
knowing such use, concealment or abandonment
probably will deprive the owner permanently
of such use or benefit.
720 ILCS 5/16-1. The Illinois statute for theft thus employs
the same two elements we used to define the generic term
“theft offense” for immigration purposes: exercise of
control over property without the owner’s consent; and
the intent to deprive the owner permanently or tempo-
rarily of the use and enjoyment of that property. Similarly,
we have defined “attempt” for the purposes of the INA
as the intent to commit a crime combined with a sub-
stantial step towards its commission. Martinez-Garcia, 268
F.3d at 465-66. Using these formulations of “attempt” and
“theft,” we concluded in Martinez-Garcia that a defendant
charged under Illinois law with burglary to a motor vehicle
with intent to commit the offense of theft therein had
committed the aggravated felony of an attempted theft
offense for the purposes of 8 U.S.C. § 1326(b)(2), 8 U.S.C.
§ 1101(a)(43) and U.S.S.G. § 2L1.2(b)(1)(A). 268 F.3d at
466. That is, the entry into the motor vehicle sufficed as
a “substantial step” toward the commission of the
intended theft. Martinez-Garcia had been charged
under the same Illinois statute at issue here, in virtually
identical language:
[T]he defendant, without authority, knowingly entered
a motor vehicle of Silvens Matthews, a 1979 Chevy
pick-up, with the intent to commit therein a theft.
268 F.3d at 462. Like Vaca-Tellez, he pled guilty and
initially was sentenced to probation. And like Vaca-Tellez,
No. 07-2397 9
he violated the terms of his probation and was sentenced
to three years’ imprisonment when his probation was
revoked.
In support of its claim that Vaca-Tellez is an aggravated
felon, the government submitted a certified copy of the
information charging Vaca-Tellez with burglary of a motor
vehicle with the intent to commit the offense of theft
therein. The government also provided the IJ with a
“Certified Statement of Conviction/Disposition” (“Certified
Statement”) from the Clerk of the Court in which Vaca-
Tellez was convicted. The Certified Statement begins with
the filing of the information and tracks the matter through
the dismissal of a post-conviction petition. The entries on
the Certified Statement are very brief descriptions of what
happened on any given day in the case. For example, there
are more than a dozen entries for August 6, 2002, each
revealing a small piece of the progress of the case, such as
“defendant in custody,” “public defender appointed,”
“plea of not guilty,” followed quickly by “plea of guilty,”
and “finding of guilty.” Given that there was only one
charge pending at the time Vaca-Tellez pled guilty, this
evidence (the information and the Certified Statement
combined) was sufficient as a matter of law for the IJ to
conclude that Vaca-Tellez had been convicted of burglary
to a motor vehicle with the intent to commit a theft
therein. See 8 U.S.C. § 1229a(c)(3)(B) (listing documents or
records that constitute proof of a criminal conviction).
Vaca-Tellez complains that without a transcript of the plea
hearing, we cannot know what conduct the plea involved.
That argument is a non-starter, however, because the
documents demonstrated that, at a minimum, Vaca-Tellez
had committed the conduct charged in the information.
10 No. 07-2397
Vaca-Tellez next asserts that the BIA did not distinguish
between the generic definitions of theft and burglary in
assessing the nature of his conviction. According to Vaca-
Tellez, the BIA used the words “burglary” and “theft”
interchangeably, without conducting a categorical analysis
of Vaca-Tellez’s offense of conviction. Under Illinois law,
a “person commits burglary when without authority he
knowingly enters or without authority remains within a
building, housetrailer, watercraft, aircraft, motor vehicle
as defined in The Illinois Vehicle Code, railroad car, or
any part thereof, with intent to commit therein a felony
or theft.” 720 ILCS 5/19-1(a). We held in Solarzano-Patlan
that the Illinois crime of burglary to an automobile with
intent to commit theft therein is not “burglary” in the
generic sense contemplated by the immigration laws
because it does not encompass the unlawful entry into, or
remaining in, a building or structure. Solorzano-Patlan, 207
F.3d at 874. See also Hernandez-Mancilla, 246 F.3d at 1005(noting that Solorzano-Patlan held that a conviction under
720 ILCS 5/19-1 for burglary of a motor vehicle is not a
“burglary offense” under § 1101(a)(43)(G) and thus
cannot be an aggravated felony on that basis). We also
held that burglary to a motor vehicle was not necessarily
a “crime of violence” under 8 U.S.C. §1101(a)(43)(F). The
INA defines a crime of violence, in relevant part, as an
“offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or
property of another may be used in the course of commit-
ting the offense.” Solorzano-Patlan, 207 F.3d at 875; 18
U.S.C. § 16(b). Because Illinois defined the crime so broadly
that it encompasses conduct that does not involve a
No. 07-2397 11
substantial risk of physical force, we remanded so that
the IJ could review the charging papers to determine
whether Solorzano-Patlan’s conduct involved a substan-
tial risk of physical force.
There is no similar problem here. Contrary to Vaca-
Tellez’s argument, the BIA did not treat “burglary” and
“theft” as interchangeable terms but rather relied on our
decision in Martinez-Garcia to conclude that the Illinois
crime of burglary to a motor vehicle with intent to
commit theft therein meets the generic definition of
attempted theft offense under the INA. Vaca-Tellez
complains that he was never charged with, or convicted
of, attempted theft. It is true that Illinois does not label
the crime Vaca-Tellez committed an “attempted theft” but
the labels that individual states apply to crimes are irrele-
vant to our analysis under federal law. See Taylor v. United
States, 495 U.S. 575, 592 (1990) (finding that the term
“burglary” in the Career Criminal statute “must have
some uniform definition independent of the labels em-
ployed by the various States’ criminal codes.”). Our
concern is not the labels but whether the elements of the
crime as defined by state law meet the elements of a
generic definition of an applicable aggravated felony,
such as a theft offense. Eke, 512 F.3d at 378-79; Martinez-
Garcia, 268 F.3d at 465 (in determining the meaning of
“attempt” under Subsection U, we must apply a generic
definition of attempt that is unconstrained by the titles,
definitions, or elements assigned to it by the various
12 No. 07-2397
States).3 See also Lopez v. Gonzales, 127 S.Ct. 625, 633 (2006)
(holding that a state offense constitutes a “felony punish-
able under the Controlled Substances Act” only if it
proscribes conduct punishable as a felony under that
federal law).
Vaca-Tellez next argues that the BIA misinterpreted
the meaning of “attempt” as defined in 8 U.S.C.
§ 1101(A)(43)(U). He argues that he was not charged with
attempted burglary. Of course, the BIA did not find that
he committed attempted burglary. Rather, the BIA deter-
mined that the Illinois crime of burglary to a motor
vehicle with intent to commit a theft therein met the
elements of a generic attempted theft offense. As we
noted in Martinez-Garcia, we are bound to apply a generic
definition of that term, unconstrained by the titles, ele-
ments and definitions applied to it by the various states.
Martinez-Garcia, 268 F.3d at 465. We adopted the
Second Circuit’s generic definition of attempt as (1) the
intent to commit a crime; and (2) a substantial step towards
its commission. Martinez-Garcia, 268 F.3d at 465-66; Sui v.
INS, 250 F.3d 105, 115 (2d Cir. 2001). Vaca-Tellez pled
3
Vaca-Tellez also asserts that the “intent to commit theft” was
simply a statement of the intent needed to demonstrate that he
did not enter the motor vehicle lawfully; the aim of that part of
the charge, he alleges, is to exclude lawful purposes and meet
the requirement of the burglary statute that the entry be
“without authority.” But that analysis would render part of
the statute meaningless because the law requires both that the
entry be “without authority” and that it be “with intent to
commit therein a felony or theft.”
No. 07-2397 13
guilty to a charge that he knowingly and without
authority entered into a car with the intent to commit a
theft in the car. He satisfied the first part of the attempt
formulation by admitting he intended to commit a crime
(theft). He met the terms of the second part by conceding
that he entered into a motor vehicle without authority,
which we construed in Martinez-Garcia as a substantial
step towards the commission of theft. 268 F.3d at 466. The
only differences between the conviction for Vaca-Tellez
and the conviction for Martinez-Garcia were the models
and owners of the Chevys involved. The charges were
virtually identical. We see no reason to treat the meaning
of “attempted theft offense” differently in the immigration
context than in the sentencing context, and we are there-
fore bound by the holding of Martinez-Garcia. See United
States v. Matamoros-Modesta, 523 F.3d 260, 264-65 (4th Cir.
2008) (finding that the term “aggravated felony” holds
the same meaning in the criminal sentencing context as it
does in the immigration setting); United States v. Figueroa-
Ocampo, 494 F.3d 1211, 1216 (9th Cir. 2007) (same).
We have considered Vaca-Tellez’s remaining arguments
and find that they are without merit. The petition for
review is therefore
D ENIED.
9-2-08