5th Circuit Case Update: Escudero-Arciniega v. Holder

The Fifth Circuit held that burglary under New Mexico law is an aggravate felony under the Immigration and Nationality Act, because it counts as a “crime of violence.”  Previously the Fifth Circuit held that a Texas burglary conviction is also a crime of violence.

I’m not convinced that either holding is correct.

Crime of Violence under Immigration and Nationality Act

The INA adopts the definition under 18 U.S.C. § 16:

The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other 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 committing the offense.

Why the Fifth Circuit thinks New Mexico burglary is a crime of violence

The Fifth Circuit held that New Mexico burglary meets the definition under 16(b).  The Court posited that the crime “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

The burglary statute reads:

B. Any person who, without authorization, enters any
vehicle, watercraft, aircraft or other structure, movable or
immovable, with intent to commit any felony or theft therein
is guilty of a fourth degree felony.
N.M. STAT. § 30-16-3(B).

Oddly, the Court analogized this statute to the provision under Texas law — which, by contrast, defines burglary as “break[ing] into or enter[ing].  The Court then held that burglary of a vehicle under New Mexico’s statute entails a significant likelihood that force will be used against another’s property.

Problems with the Court’s analysis

First, how did the Court conclude that there is a “significant likelihood” that force would be used against another’s property?  I’m no criminologist, but it doesn’t seem obvious to me that unauthorized entry of a motor vehicle in most instances involves use of force.  Can it be done without force?  If so, how often?  Does picking a car door lock count as force, simply because it is an unauthorized entry?

It seems that the Fifth Circuit based its decision on an empirical observation, but forgot to cite any evidence for it.  If it is so obvious that unauthorized entry of a vehicle usually involves force, it should not have been difficult to gather empirical proof to support this conclusion.

If citing statistics in an immigration decision seems silly, take a look at Matter of Singh, 25 I&N Dec. 670 (BIA 2012).  It’s chock-full of statistics that either support or refute the notion that the crime of stalking entails a likelihood of force.

Second, although the Court states specifically that there is “no, principled, significant distinction” between the Texas and New Mexico statutes of conviction, it’s worth noting that the Texas law explicitly includes an act of physical force — “break[ing] into — while the New Mexico law does not.  That seems like a significant distinction, especially when the entire question is one of use of force.

Third, the New Mexico law is much broader in scope than the Texas law.  It includes unauthorized entry into any “structure, movable or immovable.”  The Texas crime is only for burglary of a motor vehicle.  Thus, the New Mexico provision includes conduct like opening unlocked house windows and doors.  This should have given the Fifth Circuit even more reason to pause before reaching sweeping conclusions about the statistical likelihood of force being used.

In any case, we have to deal with Escudero as it’s written.  If you or a loved one is in deportation proceedings based on a burglary conviction, feel free to call The Vinesh Patel Law Firm at 855-278-2943.


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