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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-60757
_______________
RICARDO LOPEZ-ELIAS,
Petitioner,
VERSUS
JANET RENO,
ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
May 1, 2000
Before SMITH, BARKSDALE, and
offense, a burglary offense, or a crime of vio-
PARKER, Circuit Judges.
lenceSSany of which alone would be sufficient
to deny this court jurisdiction to review a final
JERRY E. SMITH, Circuit Judge:
order of removal by the Immigration and Nat-
uralization Service ("INS") and to authorize
This case requires the court once again to
removal.
construe the criminal alien removal provisions
of the Illegal Immigration Reform and
Because burglary of a vehicle with intent to
Immigrant Responsibility Act of 1996, Pub. L.
commit theft is a crime of violence (though
No. 104-208, 110 Stat. 3009-546 ("IIRIRA").
neither a burglary nor a theft), the IIRIRA
Specifically, we must determine whether a
deprives us of jurisdiction over this petition.
Texas conviction of burglary of a vehicle with
We therefore grant the motion to dismiss.
the intent to commit theft constitutes a theft

I.
1227(a)(2)(A)(iii). The term "aggravated
In 1985, Ricardo Lopez-Elias was convict-
felony" includes "(F) a crime of violence (as
ed in Texas state court of burglary of a vehicle
defined in section 16 of Title 18,2 but not
with the intent to commit theft, in violation of
including a purely political offense) for which
TEX. PENAL CODE ANN. § 30.04(a) (West
the term of imprisonment [is] at least one
1987), and sentenced to four years'
year" and "(G) a theft offense (including
imprisonment, suspended. In 1998, the INS
receipt of stolen property) or burglary offense
served him with a notice to appear, charging
for which the term of imprisonment [is] at least
him with being subject to removal as an
one year." § 1101(a)(43) (emphasis added).
aggravated felon, and in April 1999 an
IIRIRA further provides that, "[n]otwithstand-
immigration judge ordered his removal. The
ing any other provision of law, no court shall
Board of Immigration Appeals ("BIA")
have jurisdiction to review any final order of
dismissed Lopez-Elias's appeal in October
removal against an alien who is removable by
1999, concluding that he had committed a
reason of having committed" an aggravated
theft offense, an aggravated felony under
felony. § 1252(a)(2)(C).
IIRIRA. See 8 U.S.C. § 1101(a)(43)(G).
We have jurisdiction to review jurisdictional
Lopez-Elias filed a petition for direct
facts.3 That Lopez-Elias's four-year sentence
review in this court on November 3, 1999,
was suspended is of no significance, for
pursuant to 8 U.S.C. § 1252, arguing that he
IIRIRA makes plain that "[a]ny reference to a
had not committed an aggravated felony, and
alternatively claiming that the IIRIRA was an
unconstitutionally retroactive law in violation
2
of his right to due process. The INS now
"The term `crime of violence' meansSS
moves for dismissal of the petition on the
(a) an offense that has as an element
ground that under the permanent provisions of
the use, attempted use, or threatened use of
IIRIRA, see 8 U.S.C. § 1252(a)(2)(C),1 we
physical force against the person or property
lack jurisdiction over removal orders issued
of another, or
against criminal aliens.
(b) any other offense that is a felony
II.
and that, by its nature, involves a substantial
We begin by examining the relevant
risk that physical force against the person or
provisions of federal immigration law as
property of another may be used in the
amended by IIRIRA. "Any alien who is
course of committing the offense."
convicted of an aggravated felony at any time
after admission is deportable." 8 U.S.C. §
18 U.S.C. § 16.
3 See Camacho-Marroquin v. INS, 188 F.3d
649, 651 (5th Cir. 1999) ("The prerequisites for
1 Because the proceedings against Lopez-Elias
review preclusion under INA § 242(a)(2)(C) are:
were commenced after April 1, 1997, the
(i) an alien; (ii) deportable; (iii) for committing a
permanent provisions of IIRIRA are in force. See
crime covered in INA § 237(a)(2)(A)(iii). This
Requena-Rodriguez v. Pasquarell, 190 F.3d 299,
Court has jurisdiction to determine whether these
302-03 (5th Cir. 1999); IIRIRA § 309(c)(1), (4),
prerequisites for precluding review have been
110 Stat. 3009-625, -626.
met.").
2

term of imprisonment or a sentence with re-
Reviewing the matter de novo, we
spect to an offense is deemed to include the
nevertheless conclude that we have no
period of incarceration or confinement ordered
jurisdiction under IIRIRA, because Lopez-
by a court of law regardless of any suspension
Elias was convicted of a crime of violence
of the imposition or execution of that
under § 1101(a)(43)(F). First, however, we
imprisonment or sentence in whole or in part."
articulate why he was not convicted of a theft
§ 1101(a)(48)(B). Nor does Lopez-Elias dis-
or burglary offense under § 1101(a)(43)(G).
pute that he is in fact an alien. The only
jurisdictional question, therefore, is whether he
A.
was convicted of an aggravated felonySSthat
To determine whether an alien has
is, whether burglary of a vehicle with intent to
committed an aggravated felony, courts look
commit theft constitutes a crime of violence, a
to the text of the statute violated, not the
theft offense, a burglary offense, or none of the
underlying factual circumstances.5 According
above.
to the statute under which Lopez-Elias was
convicted, "[a] person commits an offense if,
The INS claims that its conclusion that
without the effective consent of the owner, he
Lopez-Elias committed an "aggravated felony"
breaks into or enters a vehicle or any part of a
is worthy of the familiar principles of
vehicle with intent to commit any felony or
deference to administrative agencies an-
theft." TEX. PENAL CODE ANN. § 30.04(a)
nounced in Chevron U.S.A., Inc. v. Natural
(West 1987).6
Resources Defense Council, Inc., 467 U.S.
837, 842-44 (1984).4 Even assuming the
ambiguity of the statutory terms of IIRIRA,
however, the fact that courts defer to the
5 See Camacho-Marroquin, 188 F.3d at 652;
INS's construction of its statutory powers of
cf. Taylor v. United States, 495 U.S. 575, 600
deportation does not mean that similar
(1990); United States v. Lomas, 30 F.3d 1191,
deference is warranted with respect to the
1193 (9th Cir. 1994).
enforcement of this court's jurisdictional
limitations. The former may trigger deference,
6 At the time of Lopez-Elias's conviction, Texas
but the determination of our jurisdiction is
law classified the offense as a third-degree felony.
exclusively for the court to decide. This
See TEX. PENAL CODE ANN. § 30.04(c) (West
distinction is particularly important here,
1987). In 1993, the statute was amended to treat
where the petitioner challenges not only the
the offense as a Class A misdemeanor. See TEX.
INS's statutory construction of its agency
PENAL CODE ANN. § 30.04(c) (West 1994); see
powers, but also the constitutionality of those
also TEX. PENAL CODE ANN. § 30.04(d) (West
powers.
1999). How Texas characterizes the offense does
not control federal immigration law, however, for
federal law looks only to the term of imprisonment,
and not state law, to ascertain whether the offense
is a "felony." See § 1101(a)(43)(G); cf. Moosa v.
4 See also Food & Drug Admin. v. Brown &
INS, 171 F.3d 994, 1006 (5th Cir. 1999) (stating
Williamson Tobacco Corp., 120 S. Ct. 1291
that "[t]he immigration laws contain no . . .
(2000); INS v. Cardoza-Fonseca, 480 U.S. 421,
indication that they are to be interpreted in
448-49 (1987); INS v. Aguirre-Aguirre, 526 U.S.
accordance with state law") (quoting United States
415, 424-25 (1999).
v. Campbell, 167 F.3d 94, 98 (2d Cir. 1999)).
3

Lopez-Elias was specifically charged with
dwelling, or done so at night, or done so with
burglary of a vehicle with intent to commit
intent to commit a felony (as opposed to a les-
theft. Notably, however, his conviction did
ser offense), to satisfy the generic definition of
not require a finding that he had actually com-
"burglary." Id. at 593. Nor must the act have
mitted theft; mere intent to commit was
presented a risk of physical injury to another
sufficient. Lopez-Elias therefore did not
person. Id. at 596-98.
commit a "theft offense" for purposes of the
IIRIRA.7
The Court did distinguish, however,
between burglary of "a building or other
Nor did he commit a burglary offense.
structure" on the one hand, id. at 598-99, and
When Congress deploys the term "burglary"
burglary of a vehicle on the other, id. at 599,
without specifying a definition, a generic un-
ultimately concluding that the generic term of
derstanding of the word based on the modern
"burglary" embraced only the former, and not
usage of the states, rather than the common
the latter.8 Because Lopez-Elias was
law definition, should be used. As the
convicted of burglary of a vehicle, not a
Supreme Court has explained,
building, he did not commit a "burglary" for
purposes of IIRIRA, and the INS therefore
[w]e believe that Congress meant by
was not authorized to remove him by reason
"burglary" the generic sense in which
of his commission of a burglary offense.
the term is now used in the criminal
codes of most States. . . . Although the
B.
exact formulations vary, the generic,
This court has previously recognized, how-
contemporary meaning of burglary
ever, that burglary of a vehicle does constitute
contains at least the following elements:
a "crime of violence," justifying deportation
an unlawful or unprivileged entry into,
under § 1101(a)(43)(F).9 It is true that the
or remaining in, a building or other
INS did not actually pursue removal
structure, with intent to commit a crime.
Taylor v. United States, 495 U.S. 575, 598
8 See Taylor, 495 U.S. at 602 ("For example, in
(1990).
a State whose burglary statutes include entry of an
automobile as well as a building, if the indictment
Thus, an alien need not have broken into a
or information and jury instructions show that the
defendant was charged only with a burglary of a
building, and that the jury necessarily had to find
7 In addition to listing certain offenses such as
an entry of a building to convict, then the
theft as "aggravated felonies" triggering
Government should be allowed to use the
deportation, IIRIRA provides that merely "an
conviction.").
attempt or conspiracy to commit" an enumerated
offense is deemed a deportable offense.
9 See United States v. Delgado-Enriquez,
§ 1101(a)(43)(U). The INS does not raise the
188 F.3d 592, 595 (5th Cir. 1999) (noting that
argument, but we believe Elias could have been re-
burglary of a vehicle is a crime of violence under
movedSSand our jurisdiction could have been
18 U.S.C. § 16(b)); United States v. Ramos-
precludedSSbased alternatively on the theory that
Garcia, 95 F.3d 369, 371 (5th Cir. 1996) (same);
burglary of a vehicle with intent to commit theft is
United States v. Rodriguez-Guzman, 56 F.3d 18,
tantamount to an offense of attempted theft.
20 (5th Cir. 1995) (same).
4

proceedings on this ground.10 That the INS
III.
proceeded on grounds of theft or burglary,
Federal courts derive their power to
rather than crime of violence, however, does
adjudicate from Congress, and not from the
not alter the conclusion that this court has no
Constitution alone. The permanent provisions
jurisdiction because of Lopez-Elias's
of IIRIRA therefore require that this petition
conviction of a crime of violence.
for review be dismissed for want of
jurisdiction.12 Accordingly, the motion to
dismiss the petition for review is
IIRIRA states simply that "no court shall
have jurisdiction to review any final order of
removal against an alien who is removable by
reason of having committed" an aggravated
felony. 18 U.S.C. § 1252(a)(2)(C) (emphasis
11(...continued)
added). What the INS originally charged is of
AEDPA, a statutory section solely concerned with
no consequence; so long as the alien in fact is
final orders of deportation. The section therefore
removable for committing an aggravated fel-
applies, by its very terms, only to aliens who have
ony, this court has no jurisdiction, irrespective
actually been adjudged deportable. It is therefore
of whether the INS originally sought removal
highly doubtful that, in that context, Congress
for that reason.11
meant `deportable by reason of' to mean, as the
INS would have it, `potentially susceptible to being
deported by reason of . . . .'"); Xiong v. INS, 173
10 Lopez-Elias's original notice to appear
F.3d 601, 608 (7th Cir. 1999) (same).
charged him with the prior commission of a crime
of violence, but the INS subsequently amended its
12 Even if we are required to address Lopez-
charge to theft or burglary. For this reason, the
Elias's constitutional claim on the merits
BIA expressly rejected the use of the crime-of-
notwithstanding IIRIRA's express preclusion of
violence provision to justify removal.
jurisdiction, see Max-George, 205F.3d 194, 199-
200 (5th Cir. 2000) (stating that "courts faced with
11 See Abdel-Razek v. INS, 114 F.3d 831, 832
petitions for review from criminal aliens must
(9th Cir. 1997) ("The fact that the BIA did not
determine whether the particular provisions
issue its order with reference to that section does
classifying the petitioner under the jurisdiction-
not alter petitioner's status as a convicted felon for
stripping provision . . . are being constitutionally
purposes of the availability of judicial review. We
applied"), the claim that IIRIRA is
therefore lack jurisdiction."). We note, however,
unconstitutionally retroactive has been rejected by
that other circuits have held differently. See
this court on numerous occasions. See id. at 200
Choeum v. INS, 129 F.3d 29, 38 (1st Cir. 1997)
("Congress has the power to make an alien's past
("The INS's argument is essentially a linguistic
criminal conduct subject to present or future
one. According to the INS, for purposes of
deportation notwithstanding the fact that the alien
jurisdiction, aliens `deportable by reason of' having
could not have been deported for the act at the time
committed firearms offenses are not only those
it was committed."); Moosa, 171 F.3d at 1009
aliens who have been ordered deported for firearms
(opining that "it is well settled that Congress has
offenses, but also those aliens who could be
the authority to make past criminal activity a new
deported for that reason. As a matter of statutory
ground for deportation.") (quoting Ignacio v. INS,
construction, that argument is somewhat illogical:
955 F.2d 295, 298 (5th Cir. 1992)); see also
The contested phrase comes from Section 440(a) of
Lehmann v. United States ex rel. Carson,
(continued...)
353 U.S. 685, 690 (1957).
5

GRANTED.13
13 The INS's motion for leave to file in excess
pages the motion to dismiss the petition for review
and to extend the time for filing the administrative
record is GRANTED. The INS's motion to extend
the time for filing the administrative record is
DENIED as unnecessary.
6