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Click here for the full text of this decision FACTS:Miguel Antonio Brieva-Perez (Brieva) is a native and citizen of Colombia. Authorities admitted him to the United States in 1980 as a lawful permanent resident. He is married to a U.S. citizen and is the father of citizen children. In June 1993, Brieva pleaded guilty to unauthorized use of a vehicle (UUV) in violation of Texas Penal Code �31.07(a). The trial court deferred adjudication of guilt and sentenced him to five years probation. After Brieva violated his probation in 1995, the trial court adjudicated him guilty and sentenced to him to five years of imprisonment, of which he served less than one year. In February 2003, the Immigration and Naturalization Service charged Brieva with being removable for having been convicted of an aggravated felony for a theft offense under 8 U.S.C. �1101(a)(43)(G). The INS later withdrew that charge and substituted a charge for an aggravated felony crime of violence under 8 U.S.C. �1101(a)(43)(F). The Immigration Judge determined that Brieva was removable for having been convicted of an aggravated felony because UUV was a crime of violence under 8 U.S.C. �16(b). The IJ also ruled that, despite his long residency and family ties in the United States, Brieva was ineligible for a waiver under former Immigration and Nationality Act �212(c), or 8 U.S.C. �1182(c), because his offense “lacked a comparable ground of inadmissibility in � 212(a).” The IJ ordered Brieva deported to Colombia and denied his request for a �212(c) waiver. Brieva appealed to the Board of Immigration Appeals, arguing that his conviction for UUV was not a crime of violence. He also argued that the IJ erred in ruling that he was ineligible for a �212(c) waiver for failure to demonstrate a ground of inadmissibility. The BIA dismissed Brieva’s appeal, ruling that his offense was a crime of violence and that he was ineligible for �212(c) relief because his offense could not be considered a crime involving moral turpitude under �212(a) and there was no other comparable ground of inadmissability. Brieva appealed to the 5th U.S. Circuit Court of Appeals. HOLDING:The 5th Circuit denied the petition for review of the BIA’s decision. The court first noted that under the REAL ID Act, it lacked jurisdiction to review any removal order based on, inter alia, commission of an aggravated felony. The court, however, found it had jurisdiction to decide the legal and constitutional questions that Brieva raised. Brieva, the court stated, first contended that the immigration courts improperly classified his UUV conviction as a crime of violence and an aggravated felony. This argument, however, was contrary to 5th Circuit precedent, the court stated. Eight U.S.C. �16(b) defines “crime of violence” as “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 “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.” In 1999′s United States v. Galvan-Rodriguez, the 5th Circuit concluded that UUV was a crime of violence under �16(b), because the offense by its nature posed a substantial risk that force would be used against the property or person of another. Brieva further asserted that the retroactive application of Galvan-Rodriguez, decided six years after he pled guilty to UUV in 1993 and four years after the trial court adjudicated his guilt in 1995, violated due process. He argued that he should not be removable, as his crime had no negative immigration consequences at the time he entered into his plea bargain. Contrary to Brieva’s assertions, the court stated that the immigration courts never applied the law to him retroactively. 8 U.S.C. �1101(a)(43)(F), the court stated, has defined crimes of violence as aggravated felonies since 1990, prior to Brieva’s plea. No relevant statutory change took place following his conviction, the court stated. The only change that occurred was that the 5th Circuit declared that based on the continuously effective statutory definition, UUV qualifies as a crime of violence and is therefore a deportable aggravated felony. Brieva also asserted that retroactively applying �321 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 violated due process, because �321 changed the definition of an aggravated felony after he entered into his plea bargain. But the court found that Brieva lacked standing to assert such a claim. At the time of Brieva’s plea, the court stated, 8 U.S.C. �1101(a)(43) defined an aggravated felony as “any crime of violence (as defined in section 16 of Title 18, not including a purely political offense) for which the term of imprisonment imposed . . . is at least 5 years.” The enactment of �321(a)(3) in 1996, the court stated, reduced the minimum term of imprisonment from five years to one. Thus, the court found that although the trial court did not sentence Brieva to a term of imprisonment when he originally entered a guilty plea, his probation violation resulted in the imposition of a five-year imprisonment term. Thus, the court found that he met the definition for an aggravated felony prior to the IIRIRA amendments and lacked standing to challenge the retroactive application of �321. Finally, Brieva argued that the immigration courts denied him equal protection of the law, because he is ineligible for relief under INA �212(c), while aliens who have committed more serious crimes still can obtain �212(c) waivers. But the court found that “no law is being applied to Brieva unequally.” Congress, the court stated, repealed �212(c) with the passage of IIRIRA in 1996. The U.S. Supreme Court, however, held that �212(c) relief must remain available for aliens “whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for � 212(c) relief at the time of their plea under the law then in effect.” Thus, the court found that aliens who pleaded guilty before the repeal of � 212(c) remain eligible to apply for discretionary relief. But to be eligible for such relief, the court stated, “there must be a comparable ground of inadmissability to the alien’s ground of removability.” The IJ and BIA, the court stated, concluded there was no comparable ground of inadmissibility to Brieva’s crime, a finding that the court upheld in Vo v. Gonzales, No. 05-60518, an opinion released on the same day as Brieva-Perez v. Gonzales, 05-60639. The Vo opinion, the court stated, held that the “crimes involving moral turpitude” provision of � 212(a) was insufficient to qualify as a statutory counterpart to UUV. OPINION:Jones, C.J.; Jones, C.J., and Wiener and Barksdale, J.J.

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