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Vaca-Tellez v. Mukasey

September 2, 2008


Petition for Review of an Order of the Board of Immigration Appeals. No. A35-623-368.

The opinion of the court was delivered by: Rovner, Circuit Judge.


Before POSNER, KANNE and ROVNER, Circuit Judges.

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 that Vaca-Tellez be removed to Mexico, and the Board of Immigration Appeals ("BIA") affirmed that decision. VacaTellez petitioned this court for review. Because there were no legal errors in the decision, we deny the petition for review.


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.*fn1 Vaca-Tellez's adherence to the conditions of his probation was unfortunately short-lived. On September 16, 2002, a scant six weeks after the guilty plea, he was charged with violating 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 probation violation.*fn2 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 VacaTellez'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, VacaTellez had been convicted "for the offense of intent to commit the offense of theft" in violation of 720 ILCS 5/19- 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 resentence 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.


In his petition, he contends that the IJ incorrectly construed his conviction for burglary to an automobile as an aggravated felony. He argues that the BIA mischaracterized his conviction as one for attempted theft. He also asserts that Martinez-Garcia is distinguishable and not determinative of his claim. The government 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 Responsibility 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 aggravated 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 correctly 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 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 exists."). 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-forward question of law, the court has jurisdiction over the petition). Our review of the determination that VacaTellez 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) (hereafter "Subsection G" and "Subsection U"). Under Subsection 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 government 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 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 permanently 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 property of the owner; or

(2) Obtains by deception control over property of ...

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