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Escudero-Arciniega v. Holder

United States Court of Appeals for the Fifth Circuit

December 11, 2012, Filed

No. 11-60837

Opinion

 [*782]  PER CURIAM:

This case arises from a finding that a lawful permanent resident of the United States' conviction of burglary of a vehicle under New Mexico's burglary statute rendered him removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii)  [*783]  for committing a crime of violence. The petitioner seeks review of this finding, and further seeks review of the denial of his application for asylum, for withholding of removal, and for protection under the Convention Against Torture. The issue of whether burglary under the New Mexico statute necessarily constitutes a crime of violence is one of first impression in this Circuit. We conclude that it does, and accordingly deny relief as to this claim. Because we do not have jurisdiction over the  [**2] petitioner's remaining claims, we dismiss them.

Fernando Escudero-Arciniega ("Escudero") is a native and citizen of Mexico and a lawful permanent resident of the United States. In 2006, Escudero pled guilty to burglary of a vehicle under New Mexico Statute § 30-16-3(B) and to larceny under § 30-16-1. Following numerous probation violations, the court revoked Escudero's probation and sentenced him to five years of imprisonment.

In 2010, the Department of Homeland Security served Escudero with a Notice to Appear, charging him with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) on the basis of both his burglary and larceny convictions. The Immigration Judge ("IJ") found Escudero was indeed removable under § 1227(a)(2)(A)(iii) based on his burglary conviction, for having committed an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(F). This provision defines an aggravated felony as, inter alia, a "crime of violence." The IJ found burglary  [*784]  of a vehicle under the New Mexico statute met this definition, as it involved "the serious risk that force may be used against a person or property of another during the commission of the offense."

Escudero further filed an application  [**3] for asylum and withholding of removal and sought protection under the Convention Against Torture ("CAT"). The IJ first found the nature of Escudero's conviction rendered him statutorily barred from asylum or withholding, and further found that Escudero did not present evidence demonstrating "sufficient state action" to support his CAT claim. Accordingly, the IJ denied each of these claims.

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702 F.3d 781 *; 2012 U.S. App. LEXIS 25298 **

FERNANDO ESCUDERO-ARCINIEGA, Petitioner v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

Prior History:  [**1] Petition for Review of an Order of the Board of Immigration Appeals.

Disposition: DENIED in part; DISMISSED in part.

CORE TERMS

burglary, aggravated felony, withholding, asylum, violent crime, removal

Immigration Law, Deportation & Removal, Judicial Review, Judicial Proceedings, Jurisdiction, Grounds for Deportation & Removal, Criminal Activity, Aggravated Felonies, Judicial Review, Standards of Review, De Novo Standard of Review, Criminal Law & Procedure, Criminal Offenses, Classification of Offenses, Felonies, Burglary & Criminal Trespass, Burglary, Penalties, Elements, General Overview, Administrative Law, Reviewability, Jurisdiction & Venue