Matter of Andres GUZMAN-GOMEZ

Cite as 24 I&N Dec. 824 (BIA 2009) Interim Decision #3642
824
Matter of Andres GUZMAN-GOMEZ, Respondent
File A076 692 898 – San Diego, California

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Decided May 8, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The terms “child” and “parent” defined at section 101(c) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(c) (2006), do not encompass stepchildren and
stepparents.
(2) A person born outside the United States cannot derive United States citizenship under
section 320(a) of the Act, 8 U.S.C. § 1431(a) (2006), by virtue of his or her relationship
to a nonadoptive stepparent.
FOR RESPONDENT: Thomas A. Lappin, Esquire, San Diego, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kerri Harlin, Assistant Chief
Counsel
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
FILPPU, Board Member:
In a decision dated November 24, 2008, an Immigration Judge ordered
the respondent removed from the United States pursuant to sections
237(a)(2)(A)(i) and (iii) of the Immigration and Nationality Act, 8 U.S.C.
§§ 1227(a)(2)(A)(i) and (iii) (2006). The respondent has appealed from that
decision, arguing that the proceedings should be terminated because he is a
United States citizen. The Department of Homeland Security (“DHS”)
opposes the appeal. The appeal will be dismissed.
The respondent was born in Mexico in July 1986. In February 2000, when
he was 13 years old, the respondent was admitted to the United States as a
lawful permanent resident, apparently on the basis of an immediate relative
petition filed by his mother’s husband, a United States citizen by birth who
married the respondent’s mother in 1994. After his admission to the United
States, the respondent evidently resided with his mother and stepfather in
California, although no explicit evidence was presented on that point. The sole
issue on appeal is whether the respondent automatically derived United States
Cite as 24 I&N Dec. 824 (BIA 2009) Interim Decision #3642
1 On December 22, 2004, the respondent was convicted of second-degree robbery in
violation of section 212.5(c) of the California Penal Code and was sentenced to a term of
imprisonment of 2 years. There is no dispute that this conviction renders the respondent
removable if he is an alien.
2 Section 320 was enacted in its current form pursuant to section 101(a) of the Child
Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631, 1631, and applies to
individuals who satisfied all of its requirements on or after February 27, 2001. Id. § 104, 114
Stat. at 1633; see also Matter of Rodriguez-Tejedor, 23 I&N Dec. 153 (BIA 2001).
825
citizenship through his stepfather pursuant to section 320(a) of the Act,
8 U.S.C. § 1431(a) (2006).1 We agree with the Immigration Judge that he did
not.
Section 320 of the Act provides as follows, in its entirety:
Children Born Outside the United States and Residing Permanently in the United
States; Conditions Under Which Citizenship Automatically Acquired
(a) A child born outside of the United States automatically becomes a citizen of the
United States when all of the following conditions have been fulfilled:
(1) At least one parent of the child is a citizen of the United States, whether by
birth or naturalization.
(2) The child is under the age of eighteen years.
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(3) The child is residing in the United States in the legal and physical custody
of the citizen parent pursuant to a lawful admission for permanent residence.
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(b) Subsection (a) of this section shall apply to a child adopted by a United States
citizen parent if the child satisfies the requirements applicable to adopted children
under section 101(b)(1).2
The respondent was not adopted by his mother’s husband, so section 320(b)
of the Act is inapplicable. Furthermore, the respondent’s mother did not
become a United States citizen before his 18th birthday. Thus, if the
respondent derived United States citizenship at all under section 320(a) of the
Act, he did so through his stepfather.
Because the respondent was born abroad, he is presumed to be an alien
and must come forward with the evidence to prove his citizenship claim.
Matter of Hines, 24 I&N Dec. 544, 546 (BIA 2008). To establish derivative
United States citizenship under section 320(a) of the Act, the respondent must
prove that he qualifies as the “child” of his United States citizen stepfather and
that his stepfather qualifies as his “parent.” Furthermore, if the respondent
satisfies that threshold requirement, he must also prove that he resided in his
stepfather’s “legal and physical custody” after being admitted as a lawful
permanent resident in February 2000. Section 320(a)(3) of the Act.
Cite as 24 I&N Dec. 824 (BIA 2009) Interim Decision #3642
3 The United States Court of Appeals for the Ninth Circuit has held that a child can acquire
citizenship at birth through a person who is neither a biological nor an adoptive parent if that
person was legally married to one of the child’s biological parents at the time of the birth.
Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005); Scales v. INS, 232 F.3d 1159 (9th
Cir. 2000). We have no occasion to opine as to the merits of these precedents, which arose
in the context of “acquired citizenship,” rather than “derivative citizenship,” at issue here.
We note, however, that the statutes being construed in those cases, sections 301 and 309(a)
of the Act, 8 U.S.C. §§ 1401 and 1409(a) (2000), do not employ the statutory term “child.”
In any event, it is sufficient for present purposes to observe that the respondent’s stepfather
was not married to the respondent’s mother at the time of the respondent’s birth.
Martinez-Madera v. Holder, 559 F.3d 937 (9th Cir. 2009) (distinguishing Solis-Espinoza and
Scales where the citizen stepparent was not married to one of the child’s biological parents
at the time of his birth).
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For purposes of section 320(a), the terms “child” and “parent” are defined

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by section 101(c) of the Act, 8 U.S.C. § 1101(c) (2006), which provides as
follows:
As used in title III–
(1) The term “child” means an unmarried person under twenty-one years of age
and includes a child legitimated under the law of the child’s residence or domicile, or
under the law of the father’s residence or domicile, whether in the United States or
elsewhere, and, except as otherwise provided in sections 320 and 321 of title III, a
child adopted in the United States, if such legitimation or adoption takes place before
the child reaches the age of 16 years (except to the extent that the child is described
in subparagraph (E)(ii) or (F)(ii) of subsection (b)(1), and the child is in the legal
custody of the legitimating or adopting parent or parents at the time of such
legitimation or adoption.
(2) The terms “parent”, “father”, and “mother” include in the case of a posthumous
child a deceased parent, father, and mother.
Obviously, the respondent is not his stepfather’s biological child.
Moreover, as previously noted, he was never adopted by his stepfather. Nor
has any evidence been submitted to suggest that the respondent was born out
of wedlock in Mexico, such that he could have been “legitimated” by his
stepfather under the law of Mexico or California.3 Thus, the question we must
decide is whether the terms “child” and “parent,” as defined in section 101(c)
of the Act, encompass stepchildren and stepparents. For the reasons that
follow, we conclude that they do not.
At the outset, the plain language of section 101(c), viewed in isolation,
is silent and therefore ambiguous as to whether it embraces the
“stepchild-stepparent” relationship. In such cases, where Congress’s intent is
not plainly expressed, it is our obligation to fill the statutory gap by adopting
Cite as 24 I&N Dec. 824 (BIA 2009) Interim Decision #3642
827
a reasonable interpretation of the language in question. Negusie v. Holder, 129
S. Ct. 1159, 1163-64, 1167-68 (2009); Matter of Nwozuzu, 24 I&N Dec. 609,
612 (BIA 2008). To be reasonable, our interpretation must take into account
the language and design of the Immigration and Nationality Act as a whole,
because the meaning of an ambiguous term may only become evident when
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placed in its broader statutory context. National Ass’n of Home Builders
v. Defenders of Wildlife, 551 U.S. 644 (2007) (citing FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 132 (2000)).
With the foregoing principles in mind, we begin by observing that the terms
“child” and “parent” bear different meanings in citizenship cases than they do
in other cases arising under the Act. Specifically, section 101(c) defines those
terms in citizenship cases, while section 101(b) defines them for all other
purposes, such as those involving the allocation of visas or the establishment
of eligibility for certain forms of relief from removal that require a showing of
hardship to a “child.” Notably, section 101(b)(1)(B) specifically defines the
term “child” to include “a stepchild, whether or not born out of wedlock,
provided the child had not reached the age of eighteen years at the time the
marriage creating the status of stepchild occurred.” (Emphasis added.)
Further, section 101(b)(2) defines a “parent” to include a stepparent, since the
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status of stepparent “exists by reason of any of the circumstances” that make
one a “child” under section 101(b)(1). Yet such an explicit reference to
stepchildren and stepparents is notably absent from section 101(c) of the Act.
The foregoing comparison of sections 101(b) and (c) shows that when
Congress wants the term “child” to encompass stepchildren for some purpose
under the Act, it knows how to make its intention clear in that regard. Cf.
Matter of Briones, 24 I&N Dec. 355, 368 (BIA 2007). Furthermore, it is well
established that a negative inference may reasonably be drawn from the
exclusion of language from one statutory provision that is included in other
provisions of the same statute. Hamdan v. Rumsfeld, 548 U.S. 557, 578
(2006). As the United States Supreme Court has stated, “‘[W]here Congress
includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or exclusion.’”
INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) (quoting Russello
v. United States, 464 U.S. 16, 23 (1983)). We see no reason why this
presumption should not apply here. Indeed, the legislative history of sections
101(b) and (c) contain substantial evidence that Congress deliberately defined
the term “child” to encompass stepchildren for visa allocation purposes, but
not for purposes of derivative citizenship.
As to stepchildren, the definitions in sections 101(b) and (c) of the Act find
their origin in the Immigration and Nationality Act of 1952, Pub. L. No.
82-414, 66 Stat. 163. Prior to the 1952 Act, a stepchild was not considered a
Cite as 24 I&N Dec. 824 (BIA 2009) Interim Decision #3642
4 See Nationality Act of 1940, ch. 876, § 102(h), 54 Stat. 1137, 1138; Immigration Act of
1924, ch. 190, § 28(m), 43 Stat. 153, 169. Between 1855 and 1922, the general rule was that
an alien woman who was herself eligible for naturalization acquired United States citizenship
automatically upon her marriage to a United States citizen. See Act of February 10, 1855,
ch. 71, § 2, 10 Stat. 604; see also Kelly v. Owen, 74 U.S. 496, 498 & n.2 (1868). In turn, the
minor children of such a woman would derive United States citizenship automatically
through their mother—whether they were related to her new husband or not—pursuant to
the Act of April 14, 1802, ch. 28, 2 Stat. 155, which stated in relevant part that the children
of naturalized citizens were to be treated as citizens themselves. In re Roberston, 179 F. 131,
132 (D.C. Pa. 1910); United States ex rel. Fisher v. Rodgers, 144 F. 711, 712 (D.C. Pa.
1906); United States v. Kellar, 13 F. 82, 84-85 (C.C. Ill. 1882). Thus, in some sense these
children could be viewed as having derived citizenship through their United States citizen
stepfathers, albeit at several removes. However, the law that conferred automatic citizenship
on the alien wives of United States citizens was repealed in 1922. See Act of September 22,
1922, ch. 411, 42 Stat. 1021. Consequently, after that date the children of such women
ceased to derive citizenship, by extension, through their stepfathers. See S. Rep. No.
81-1515, at 707.
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“child” under the immigration law for either derivative citizenship or visa
allocation purposes. S. Rep. No. 81-1515, at 707 (1950) (“Stepchildren do not
derive citizenship through the naturalization of a stepparent.”); Int’l Mercantile
Marine Co. v. Elting, 67 F.2d 886, 888 (2d Cir. 1933) (holding that a stepchild
could not be admitted as an immigrant by virtue of his relationship to his
stepfather); Weedin v. Mon Hin, 4 F.2d 533, 534 (9th Cir. 1925) (same); see
also Margaret M. Mahoney, Stepfamilies in the Federal Law, 48 U. Pitt.
L. Rev. 491, 514-34 (Winter 1987) (discussing the evolution of the treatment
of stepchildren under the immigration laws).4
In April 1950, a Senate subcommittee that was charged with the task of
examining the immigration system and making recommendations for its

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improvement issued a comprehensive report discussing, among other
things, how children (including stepchildren) had historically been treated
under the immigration law. S. Rep. No. 81-1515, at 467-68, 706-09. The
subcommittee report noted at the outset that stepchildren had traditionally been
ineligible under our laws to obtain visas or derivative citizenship through
their stepparents. Id. at 468, 707. In the visa context, the subcommittee
recommended that the law be liberalized to grant “nonquota status” (roughly
the equivalent of “immediate relative” status under current law) to some
stepchildren of United States citizens. Id. at 468. When it came to derivative
citizenship, however, the subcommittee affirmatively disclaimed any intention
to change the existing law, which then provided that “[s]tepchildren do not
derive citizenship through the naturalization of a stepparent.” Id. at 707; see
also id. at 712-13.
Cite as 24 I&N Dec. 824 (BIA 2009) Interim Decision #3642
5 In view of this fact, we have no occasion to decide whether the respondent was in his
stepfather’s “legal and physical custody” after being admitted as a lawful permanent resident,
as required by section 320(a)(3) of the Act.
829
Like the Supreme Court, we consider S. Rep. No. 81-1515 to be a valuable
historical resource for understanding the meaning of the 1952 Act. See, e.g.,
United States v. Mendoza-Lopez, 481 U.S. 828, 835 n.10 (1987); Saxbe
v. Bustos, 419 U.S. 65, 78 (1974); United States v. Menasche, 348 U.S. 528,
531 (1955). The report is of particular value in this case, because the
definitions of the term “child” ultimately embodied in sections 101(b) and (c)
of the 1952 Act appear to have sprung quite directly from the subcommittee’s
recommendations.
Finally, we observe that the DHS’s United States Citizenship and

Immigration Services (“USCIS”) has formally taken the position that
stepchildren cannot derive United States citizenship through their stepparents
under section 320(a) of the Act. See USCIS, DHS, Adjudicator’s Field
Manual, ch. 71.1(b) & app. 71-7 (2007), available at http://www.westlaw.com
(find by citation to “FIM-ADJFMAN 71.1” and “FIM-ADJFMAN APP
71-7”); see also Letter of Rosalina Lacot, Acting Director, Business Process
and Re-engineering, INS Immigration Services Division, Dep’t of Justice, to
Mr. Alan Lee (Aug. 8, 2001), reprinted in 78 Interpreter Releases, No. 32,
Aug. 20, 2001, app. III, at 1350, 1370. DHS memoranda and internal guidance
do not have the force and effect of law in removal proceedings, but the policies
contained in such memoranda can be adopted by the Board when appropriate.
Matter of M/V Saru Meru, 20 I&N Dec. 592, 595-96 (BIA 1992) (citing
Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980)).
In light of the foregoing, we agree with the Immigration Judge that an
alien cannot demonstrate derivative citizenship under section 320(a) of the
Act through a nonadoptive stepparent.5 Consequently, the respondent has
failed to rebut the presumption of alienage that arises by virtue of his foreign
birth, and the DHS has satisfied its burden of proving that the respondent
is an “alien.” The respondent is therefore subject to the jurisdiction of the
Immigration Court and this Board. He has made no argument on appeal as to
the validity of the charges of removability. Nor has he requested any form of
relief from removal. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

UUMV Not A Crime of Violence

No. 08-983
In the Supreme Court of the United States
JOSE ANGEL SERNA-GUERRA, PETITIONER
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE RESPONDENT
ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney
General
DONALD E. KEENER
ROBERT N. MARKLE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
(I)
QUESTION PRESENTED
Whether the Texas offense of unauthorized use of a
motor vehicle qualifies as a “crime of violence” under 18
U.S.C. 16 and is therefore an “aggravated felony” under
8 U.S.C. 1101(a)(43)(F ).
(III)
TABLE OF CONTENTS
Page
Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TABLE OF AUTHORITIES
Cases:
Armendariz-Moreno v. United States, 129 S. Ct. 993
(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Begay v. United States, 128 S. Ct. 1581 (2008) . . . . . . . . . . 5
Castillo-Lucio v. United States, 129 S. Ct. 993 (2009) . . . . 5
Chambers v. United States, 129 S. Ct. 687 (2009) . . . . . . 5, 6
Leocal v. Ashcroft, 543 U.S. 1 (2004) . . . . . . . . . . . . . . . . . 3, 4
Reyes-Figueroa v. United States, 129 S. Ct. 998 (2009) . . . 5
United States v. Sanchez-Garcia, 501 F.3d 1208 (10th
Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statutes:
Armed Career Criminal Act of 1984, 18 U.S.C.
924(e)(2)(B)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Immigration and Nationality Act, 8 U.S.C. 1101 et seq. . . . 2
8 U.S.C. 1101(a)(43)(F) . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4
8 U.S.C. 1101(a)(43)(G) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
8 U.S.C. 1227(a)(2)(A)(iii) . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
18 U.S.C. 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4
Texas Penal Code Ann. § 31.07(a) (Vernon 2003) . . . . . . . . 2
IV
Miscellaneous: Page
Letter from Tim Johnson, Acting U.S. Atty, to Hon.
Charles R. Fulbruge III, Clerk, U.S. Court of
Appeals for the Fifth Circuit, regarding United
States v. Armendariz-Moreno, No. 07-40225 (Mar.
30, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Letter from Tim Johnson, Acting U.S. Atty, to Hon.
Charles R. Fulbruge III, Clerk, U.S. Court of
Appeals for the Fifth Circuit, regarding United
States v. Castillo, No. 07-40752 (Mar. 30, 2009) . . . . . . . 5
(1)
In the Supreme Court of the United States
No. 08-983
JOSE ANGEL SERNA-GUERRA, PETITIONER
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE RESPONDENT
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-10a)
is not published in the Federal Reporter but is reprinted
in 285 Fed. Appx. 110. The orders of the Board of Immigration
Appeals (Pet. App. 11a-12a, 13a-15a) are unreported.
The decision of the immigration judge (Pet.
App. 16a-22a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on
May 30, 2008. A petition for rehearing was denied on
November 3, 2008 (Pet. App. 23-30a). The petition for a
writ of certiorari was filed on February 2, 2009 (a Monday).
This Court’s jurisdiction is invoked under 28
U.S.C. 1254(1).
2
STATEMENT
1. Under the Immigration and Nationality Act
(INA), 8 U.S.C. 1101 et seq., an alien may be removed
from the United States if he has been convicted of an
“aggravated felony” at any time after his admission.
8 U.S.C. 1227(a)(2)(A)(iii). The INA defines the term
“aggravated felony” to encompass numerous categories
of offenses, including “a crime of violence (as defined in
section 16 of title 18, but not including a purely political
offense) for which the term of imprisonment [is] at least
one year.” 8 U.S.C. 1101(a)(43)(F). Section 16, in turn,
defines a “crime of violence” as:
(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.
18 U.S.C. 16. The term “aggravated felony” also includes
“a theft offense * * * for which the term of imprisonment
[is] at least one year.” 8 U.S.C.
1101(a)(43)(G).
2. Petitioner is a citizen of Mexico who was admitted
to the United States in 1983 as a lawful permanent resident.
In 1986, petitioner pleaded guilty in a Texas court
to the felony offense of unauthorized use of a vehicle
(UUV) in violation of Texas Penal Code § Ann. 31.07(a)
(Vernon 2003), which provides that “[a] person commits
an offense if he intentionally or knowingly operates another’s
* * * motor-propelled vehicle without the effective
consent of the owner.” Petitioner was sentenced
to five years of imprisonment, but that sentence was
3
suspended, and he was placed on five years of probation.
Pet. App. 14a, 18a.
3. In 2005, United States Immigration and Customs
Enforcement (ICE) brought removal proceedings
against petitioner based on the Texas conviction. ICE
charged petitioner with being removable under Section
1227(a)(2)(A)(iii) because, after his admission, he had
been convicted of an aggravated felony. ICE alleged
that petitioner’s crime of conviction is both a crime of
violence, under Section 1101(a)(43)(F ), and a theft offense,
under Section 1101(a)(43)(G). Pet. App. 16a-17a.
An immigration judge in San Antonio, Texas, ordered
that petitioner be removed. Pet. App. 16a-22a. The immigration
judge found that petitioner’s conviction for
UUV is an aggravated felony because it is both a crime
of violence and a theft offense. Id. at 18a-21a.
Petitioner appealed to the Board of Immigration Appeals
(Board), which dismissed the appeal. Pet. App.
13a-15a. The Board affirmed the immigration judge’s
determination that petitioner is removable under Section
1227(a)(2)(A)(iii) as an alien convicted of an aggravated
felony because the Texas UUV offense is a crime
of violence. Id. at 15a. The Board did not address whether
UUV is also a theft offense. See id . at 13a-15a.
Petitioner sought review of the Board’s removal order
in the United States Court of Appeals for the Fifth
Circuit. The Attorney General filed a motion to remand
the case to the Board for reconsideration in light of this
Court’s decision in Leocal v. Ashcroft, 543 U.S. 1 (2004),
which held that driving under the influence (DUI) is not
a crime of violence under 18 U.S.C. 16 because DUI involves
negligent conduct that does not constitute the
sort of violent, active crime to which Section 16 is directed.
Petitioner did not oppose the motion to remand.
4
Administrative Record (A.R.) 52-56. The court of appeals
remanded the case to the Board. Id. at 51.
On remand, the Board reaffirmed its prior ruling.
Pet. App. 11a-12a. Relying on Fifth Circuit precedent,
the Board concluded that the Texas offense of UUV is a
crime of violence under 18 U.S.C. 16 and that petitioner
therefore is removable as an aggravated felon. Pet.
App. 12a.
4. The court of appeals summarily affirmed the
Board’s ruling. Pet. App. 1a-10a. The court held that it
was bound by Fifth Circuit precedent to conclude that
UUV is a crime of violence under Section 16 and therefore
an aggravated felony under Section 1101(a)(43)(F ).
Id. at 1a-2a. Judge Jolly concurred in only that part of
the court’s opinion. Id. at 1a n.*. In the remainder of
the opinion, Judges Dennis and Prado urged the full
court to rehear the case en banc and to overrule the controlling
precedent. Id. at 2a-10a.
Petitioner sought rehearing en banc, but the court of
appeals denied his petition. Pet. App. 23a. Judge Dennis,
joined by Judges King, Wiener, and Prado, dissented
from the denial of rehearing en banc. Id. at 24a-
30a. The dissenting judges argued that the Fifth Circuit’s
precedent holding that the Texas UUV offense is
a “crime of violence” under Section 16 is incorrect and
conflicts with Leocal v. Ashcroft, supra, and United
States v. Sanchez-Garcia, 501 F.3d 1208 (10th Cir.
2007). See Pet. App. 24a-30a.
DISCUSSION
Petitioner argues (Pet. 7-15) that this Court should
grant plenary review because the Texas UUV offense of
which he was convicted is not a “crime of violence” under
18 U.S.C. 16, and because the court of appeals’ deci5
sion upholding his removal conflicts with decisions of
this Court and the United States Court of Appeals for
the Tenth Circuit. In the alternative, petitioner argues
(Pet. 7-8, 13, 27, 28) that this Court should grant the
petition for a writ of certiorari, vacate the decision of the
court of appeals, and remand for further consideration
in light of Chambers v. United States, 129 S. Ct. 687
(2009). The Court in Chambers held that a failure to
report for weekend confinement is not a violent felony
under the Armed Career Criminal Act of 1984 (ACCA),
18 U.S.C. 924(e)(2)(B)(ii), because it does not present a
serious potential risk of physical injury to another. Respondent
agrees that the Court should grant, vacate,
and remand in light of Chambers.
As petitioner notes (Pet. 7-8), following the decision
in Chambers, this Court granted certiorari, vacated the
judgments below, and remanded for further consideration
in three cases from the Fifth Circuit raising the
same issue that petitioner raises here. See Castillo-
Lucio v. United States, 129 S. Ct. 993 (2009); Armendariz-
Moreno v. United States, 129 S. Ct. 993 (2009);
Reyes-Figueroa v. United States, 129 S. Ct. 998 (2009).
The United States subsequently filed letter briefs in two
of those three cases, informing the Fifth Circuit that, in
light of Chambers and Begay v. United States, 128 S. Ct.
1581 (2008), which held that DUI is not a violent felony
under the ACCA, the government no longer adheres to
its prior position that UUV is a crime of violence under
Section 16. See Letter from Tim Johnson, Acting U.S.
Att’y, to Hon. Charles R. Fulbruge III, Clerk, U.S.
Court of Appeals for the Fifth Circuit, regarding United
States v. Armendariz-Moreno, No. 07-40225 (Mar. 30,
2009); Letter from Tim Johnson, Acting U.S. Atty, to
Hon. Charles R. Fulbruge III, Clerk, U.S. Court of Ap6
peals for the Fifth Circuit, regarding United States v.
Castillo-Lucio, No. 07-40752 (March 30, 2009).
In light of the remands and the government’s change
of position, the Fifth Circuit may well reconsider its prior
rulings on the issue and bring itself into alignment
with the Tenth Circuit. Plenary review of the issue by
this Court would therefore be premature at this time.
Instead, the Court should follow the same approach here
that the Court took in Castillo-Lucio, Armendariz-
Moreno, and Reyes-Figueroa.
CONCLUSION
The petition for a writ of certiorari should be
granted, the decision of the court of appeals should be
vacated, and the case should be remanded for further
consideration in light of Chambers v. United States, 129
S. Ct. 687 (2009).
Respectfully submitted.
ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney
General
DONALD E. KEENER
ROBERT N. MARKLE
Attorneys
MAY 2009