     Case: 12-60490    Document: 00512680978     Page: 1   Date Filed: 06/30/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                        Fifth Circuit

                                                                       FILED
                                  No. 12-60490                      June 30, 2014
                                                                    Lyle W. Cayce
                                                                         Clerk
ADRIAN GARCIA, also known as Adrian Garcia Bustamante,

                                            Petitioner
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                            Respondent




                      Petition for Review of an Order of the
                         Board of Immigration Appeals


Before DAVIS, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:
      In 1998, Adrian Garcia (“Garcia”) was convicted of committing an auto
burglary in violation of section 30-16-3(B) of the New Mexico Statutes
Annotated. In 2010, the Department of Homeland Security (“DHS”) served
Garcia with a Notice To Appear (“NTA”) charging him with removability under
8 U.S.C. § 1182(a)(2)(A)(i)(I), which renders inadmissible any alien convicted
of a crime involving moral turpitude, based on his New Mexico auto-burglary
conviction.   The immigration judge (“IJ”) determined that Garcia was
removable as charged and also determined that Garcia’s auto-burglary
conviction constituted a conviction for an aggravated felony under 8 U.S.C. §
1101(a)(43), rendering him ineligible to apply for cancellation of removal under
8 U.S.C. § 1229b(a)(3). Garcia appealed the IJ’s determination that he was
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                                  No. 12-60490
ineligible to apply for cancellation of removal to the Board of Immigration
Appeals (“BIA”). He did not appeal the IJ’s determination that his New Mexico
auto-burglary conviction constituted a conviction for a crime involving moral
turpitude that, under 8 U.S.C. § 1182(a)(2)(A)(i)(I), rendered him inadmissible.
Ultimately, the BIA dismissed the appeal, agreeing that Garcia’s auto-
burglary conviction, as a conviction for an aggravated felony, rendered him
ineligible to apply for cancellation of removal.
      In his petition for review, Garcia challenges the BIA’s determination that
his auto-burglary conviction constitutes a conviction for an aggravated felony.
He does not challenge the IJ’s determination that he is removable on the basis
of his New Mexico auto-burglary conviction, which he did not appeal to the
BIA. Having reviewed the parties’ arguments, we make explicit what was
dictum in Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. 2000), and join the
Seventh, Ninth, and Tenth Circuits, see United States v. Venzor-Granillo, 668
F.3d 1224, 1226, 1232 (10th Cir. 2012); Ngaeth v. Mukasey, 545 F.3d 796, 801-
02 (9th Cir. 2008); United States v. Martinez-Garcia, 268 F.3d 460, 466 (7th
Cir. 2001), in holding that a conviction for unauthorized entry of a vehicle with
intent to commit a theft therein constitutes a conviction for an attempted theft
offense, which, under 8 U.S.C. §§ 1101(a)(43)(U) and 1229b(a)(3), renders
Garcia ineligible to apply for cancellation of removal. We therefore DENY
Garcia’s petition for review.
                                BACKGROUND
      On July 19, 2010, DHS served Garcia, a native and citizen of Mexico and
a lawful permanent resident of the United States, with the NTA. The NTA
alleged that Garcia was subject to removal under 8 U.S.C. § 1182(a)(2)(A)(i)(I)
because he had been convicted of auto burglary, a crime of moral turpitude, in




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                                      No. 12-60490
New Mexico in 1998. 1 Garcia admitted that he was a native and citizen of
Mexico and was a lawful permanent resident of the United States but he
denied the remaining allegations and denied removability.
       On September 6, 2011, the IJ held a removal hearing and determined
that Garcia was removable pursuant to § 1182(a)(2)(A)(i)(I).                 The IJ then
scheduled future hearings to provide Garcia an opportunity to file an
application for cancellation of removal, which Garcia subsequently filed. The
IJ later ruled, however, that because Garcia’s auto-burglary conviction
constituted a conviction for an aggravated felony under 8 U.S.C. § 1101(a)(43),
Garcia was ineligible to apply for cancellation of removal under 8 U.S.C. §
1229b(a)(3).
       Garcia appealed to the BIA, arguing that the IJ had erred by finding that
his auto-burglary conviction constituted a conviction for an aggravated felony.
The BIA, however, upheld the IJ’s decision and dismissed the appeal. The BIA
held that this circuit’s decision in Lopez-Elias foreclosed the IJ’s conclusion
that Garcia’s auto-burglary conviction constituted a conviction for an
aggravated felony under 8 U.S.C. § 1101(a)(43)(G), which defines “aggravated
felony” to include “a theft offense . . . for which the term of imprisonment [is]
at least one year.” Nevertheless, the BIA ruled that the error was harmless
because Garcia’s auto-burglary conviction constituted a conviction for an
aggravated felony under 8 U.S.C. § 1101(a)(43)(U), which defines “aggravated



       1 The NTA also alleged that Garcia was subject to removal under 8 U.S.C. §
1182(a)(2)(C) because he had been convicted of distributing marijuana in violation of section
30-31-22(A) of the New Mexico Statutes Annotated. Both the IJ and the BIA agreed and both
concluded that Garcia’s marijuana-distribution conviction rendered him ineligible to apply
for cancellation of removal. Because we conclude that Garcia’s auto-burglary conviction
renders him ineligible to apply for cancellation of removal, we need not consider Garcia’s
separate argument that his marijuana-distribution conviction does not constitute a
conviction for an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). Accordingly, we decline
to address it.
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                                       No. 12-60490
felony” to include “an attempt or conspiracy to commit an offense described in”
subsection (a)(43). The BIA therefore concluded that Garcia was ineligible to
apply for cancellation of removal. Garcia filed a timely petition for review.
                     STANDARD AND SCOPE OF REVIEW
       “We review the BIA’s conclusions of law de novo, although we defer to
the BIA’s interpretation of [ambiguous] immigration regulations if that
interpretation is reasonable.” Hernandez-Castillo v. Moore, 436 F.3d 516, 519
(5th Cir. 2006). Whether a prior conviction constitutes an aggravated felony
under the Immigration and Naturalization Act (“INA”) is a question of law we
review de novo, see Patel v. Mukasey, 526 F.3d 800, 802 (5th Cir. 2008), as is
“[t]he BIA’s determination that an alien is ineligible for discretionary relief in
the form of cancellation of removal,” Vasquez-Martinez v. Holder, 564 F.3d 712,
715 (5th Cir. 2009).
       The record in this case does not clearly establish whether Garcia has
already been removed from the United States. Nevertheless, the Supreme
Court has stated that a petition for review is not rendered moot by merit of the
petitioner’s removal; even if Garcia has been removed, he may still seek
cancellation of removal from abroad. See Carachuri-Rosendo v. Holder, 130 S.
Ct. 2577, 2584 n.8 (2010). 2




       2 We also note that we generally lack “jurisdiction to review any final order of removal
against an alien who is removable by reason of having committed a criminal offense covered
in [8 U.S.C. §] 1182(a)(2).” 8 U.S.C. § 1252(a)(2)(C). In this case, the NTA alleged that Garcia
was subject to removal under 8 U.S.C. § 1182(a)(2)(C) as a consequence of his New Mexico
marijuana-distribution conviction, and the IJ and the BIA both agreed. Nevertheless, our
jurisdiction over “questions of law raised upon a petition for review” is not barred. See id. §
1252(a)(2)(D); Alvarado de Rodriguez v. Holder, 585 F.3d 227, 234 (5th Cir. 2009). We
therefore have jurisdiction to consider—and dispose of this case on the basis of—Garcia’s
legal challenge predicated on his New Mexico auto-burglary conviction.
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                                   No. 12-60490
                                  DISCUSSION
      Garcia did not challenge the IJ’s determination that he is removable
under 8 U.S.C. § 1182(a)(2)(A)(i)(I) on the basis of his New Mexico auto-
burglary conviction. Consequently, we do not—and may not—consider this
issue. See Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009). Garcia
argues instead that the BIA erred in holding that his auto-burglary conviction
constitutes a conviction for an aggravated felony that, under 8 U.S.C. §
1229b(a)(3), renders him ineligible to apply for cancellation of removal. We
conclude that the BIA did not so err and therefore deny Garcia’s petition for
review.
                                          I.
       “When the Government alleges that a state conviction qualifies as an
‘aggravated felony’ under the INA, [courts] generally employ a ‘categorical
approach’ to determine whether the state offense is comparable to an offense
listed in the INA.” Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). “Under
this approach [courts] look ‘not to the facts of the particular prior case,’ but
instead to whether ‘the state statute defining the crime of conviction’
categorically fits within the ‘generic’ federal definition of a corresponding
aggravated felony.” Id. (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186
(2007)). “[A] state offense is a categorical match with a generic federal offense
only if a conviction of the state offense ‘“necessarily” involved . . . facts equating
to [the] generic [federal offense].’” Id. (alterations in original) (quoting Shepard
v. United States, 544 U.S. 13, 24 (2005)). “Because [courts] examine what the
state conviction necessarily involved, not the facts underlying the case, [the
court] must presume that the conviction ‘rested upon [nothing] more than the
least of th[e] acts’ criminalized, and then determine whether even those acts
are encompassed by the generic federal offense.” Id. (alterations in original)
(quoting Johnson v. United States, 559 U.S. 133, 137 (2010)).
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      The categorical approach, however, is subject to certain qualifications.
See id. One such qualification is when a state conviction is obtained under a
divisible criminal statute, which triggers what is called the “modified”
categorical approach. See Descamps v. United States, 133 S. Ct. 2276, 2283-84
(2013) (explaining that a divisible statute “comprises multiple, alternative
versions of the crime”). The modified categorical approach “serves a limited
function: It helps effectuate the categorical analysis when a divisible statute,
listing potential offense elements in the alternative, renders opaque which
elements played a part in the [petitioner’s] conviction.” Id. at 2283. When
            address[ing] state statutes that contain several different
      crimes, each described separately, . . . [the Court] ha[s] held that a
      court may determine which particular offense the noncitizen was
      convicted of by examining the charging document and jury
      instructions, or in the case of a guilty plea, the plea agreement,
      plea colloquy, or some comparable judicial record of the factual
      basis for the plea.
Moncrieffe, 133 S. Ct. at 1684 (quoting Nijhawan v. Holder, 557 U.S. 29, 35
(2009)) (internal quotation marks omitted).
                                       II.
      In 1998, Garcia was convicted of committing an auto burglary in
violation of section 30-16-3(B) of the New Mexico Statutes Annotated, which
provides that “[a]ny 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.” In this
case, the BIA determined that Garcia’s conviction under this statute
constituted a conviction for an aggravated felony under 8 U.S.C. §
1101(a)(43)(U) because it was an attempted theft offense.
      We note that section 30-16-3(B) may be violated if a person enters a
vehicle without authorization and attempts to commit a crime other than a
theft therein, for instance, arson. See N.M. STAT. ANN. § 30-16-3(B) (“with
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                                       No. 12-60490
intent to commit any felony or theft therein”) (emphasis added); State v. Post,
783 P.2d 487, 492 (N.M. App. 1989) (holding that the evidence, which showed
that the defendant had entered a high school without permission and with
intent to commit arson therein, was sufficient to convict him of burglary under
section 30-16-3(B)). Consequently, we conclude that the statute is divisible,
accord Ngaeth, 545 F.3d at 801, and employ the modified categorical approach
to aid our examination of “which elements played a part in the [petitioner’s]
conviction,” Descamps, 133 S. Ct. at 2283-84. Under that approach, we may
consider a limited number of additional documents, including the charging
document and, in the case of a guilty plea, the plea agreement. Moncrieffe, 133
S. Ct. at 1684.
       In this case, those documents reflect that Garcia was charged with
“enter[ing] a vehicle, a 1988 Chevrolet Astro Van belonging to Teresa
Larranaga, without authorization or permission, with intent to commit a theft
therein, contrary to §30-16-3(B), NMSA 1978” and that Garcia pleaded guilty
“as charged.” The documents therefore reveal that Garcia was convicted under
the subsection criminalizing unauthorized entry of a motor vehicle with intent
to commit a theft therein.
       In Lopez-Elias v. Reno, this court considered “whether a Texas conviction
of burglary of a vehicle with the intent to commit theft constitutes a theft
offense, a burglary offense, or a crime of violence.”                  209 F.3d at 790. 3


       3 Although Lopez-Elias addressed a conviction under Texas’s auto-burglary statute,
rather than a conviction under New Mexico’s auto-burglary statute, the distinction is
immaterial for purposes of our analysis because the elements of both statutes are virtually
identical. Compare TEX. PENAL CODE ANN. § 30.04(a) (“A person commits an offense if,
without the effective consent of the owner, he breaks into or enters a vehicle or any part of a
vehicle with intent to commit any felony or theft.”), with N.M. STAT. ANN. § 30-16-3(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.”).

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                                       No. 12-60490
Ultimately, the court concluded that although the petitioner’s auto-burglary
conviction was neither a conviction for a theft offense nor a conviction for a
burglary offense under 8 U.S.C. § 1101(a)(43)(G), the petitioner’s auto-burglary
conviction did constitute a conviction for a crime of violence under 8 U.S.C. §
1101(a)(43)(F). See id. at 792-93 & n.9. This conclusion was dispositive of the
case, see id. at 793, so this court had no opportunity to consider whether the
petitioner’s auto-burglary conviction also constituted a conviction for an
attempted theft offense under 8 U.S.C. § 1101(a)(43)(U), see also id. at 792 n.7
(noting that the government “d[id] not raise th[is] argument”). 4 Nevertheless,
the court reasoned in dictum that the petitioner’s conviction for unauthorized
entry of a vehicle with intent to commit a theft therein was “tantamount to an
offense of attempted theft” under 8 U.S.C. § 1101(a)(43)(U). Id.
      Three other circuit courts have expressly held that a conviction for
unauthorized entry of a vehicle with intent to commit a theft therein
constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(U). See Venzor-
Granillo, 668 F.3d at 1232 (“A comparison of the elements of Venzor-Granillo’s
conviction for first degree criminal trespass with the elements of the generic
definition of attempt to commit a theft offense shows that Venzor-Granillo
necessarily admitted all the elements of the generic crime of attempt to commit
theft.”); Ngaeth, 545 F.3d at 801-02 (holding, under the modified categorical
approach, that “a conviction for entering a locked vehicle with the intent to
commit theft constitutes an attempted theft offense for purposes of the
aggravated felony definition” under 8 U.S.C. § 1101(a)(43)(U)); Martinez-
Garcia, 268 F.3d at 466 (“In pleading guilty to this charge, [Martinez-]Garcia
admitted engaging in conduct which we determine to fit within the parameters
of an attempt to commit a theft offense under [8 U.S.C. § 1101(a)(43)(U)], and


      4   By contrast, the government has raised this argument in Garcia’s case.
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                                  No. 12-60490
the district court therefore did not err in concluding that the defendant’s 1988
conviction was an aggravated felony.”).
      The Second Circuit has warned that inchoate crimes such as attempt are
highly fact-specific and, therefore, not amenable to categorical analysis. See
Sui v. I.N.S., 250 F.3d 105, 119 (2d Cir. 2001). Sui, however, is inapposite
because it did not involve a petitioner who had been convicted of auto burglary
like Garcia and the petitioners in Lopez-Elias, Venzor-Granillo, Ngaeth, and
Martinez-Garcia. Rather, Sui had been convicted of possessing counterfeit
securities, and the Second Circuit’s holding that this did not constitute a
conviction for an attempted offense under 8 U.S.C. § 1101(a)(43)(U) was based
on reasoning specific to the nature of securities offenses. See id. (“Given that
possession of counterfeit securities with an intent to deceive does not
necessarily constitute an attempt to pass these securities and cause a loss, . . .
we find that Sui has not been convicted of an aggravated felony as defined in
subsection (U).”). Moreover, the Sui court articulated a two-part test to prove
attempt, asking “(1) has the defendant acted with the culpability otherwise
required for the commission of the crime he or she is charged with attempting
and (2) has the defendant engaged in conduct that constitutes a substantial step
toward the commission of the crime and that is strongly corroborative of the
actor’s criminal purpose?” Id. at 115 (emphasis added). Both the Seventh
Circuit and the Ninth Circuit have observed that a petitioner takes a
substantial step toward committing a theft offense when he unlawfully enters
a vehicle without the owner’s consent. See Ngaeth, 545 F.3d at 802 (reasoning
that “entering a ‘vehicle . . . when the doors are locked’ clearly constitutes a
substantial step towards committing a theft”) (citation omitted); Martinez-
Garcia, 268 F.3d at 466 (“The 1988 Information charged Garcia with the intent
to commit a theft, and also charged him with taking a substantial step toward
the commission of the theft (unlawfully entering a motor vehicle without the
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                                 No. 12-60490
owner’s consent).”); see also Venzor-Granillo, 668 F.3d at 1232 (stating that
“the generic definition of ‘attempt’ is an intent to commit a crime and the
commission of an act which constitutes a substantial step toward commission
of that crime” and holding that “the elements of the offense Venzor-Granillo
pleaded guilty to, as set forth in his plea agreement, substantially correspond
to the elements of the generic offense of attempt to commit theft”). Whereas
possessing counterfeit securities does not alone constitute a substantial step
toward passing them along and causing loss, Sui, 250 F.3d at 119, we conclude
that Garcia took the requisite substantial step toward the commission of a
theft offense based on his pleading guilty to entering another person’s vehicle
without her authorization or permission and with the intent to commit a theft
therein.
      We therefore join the Seventh, Ninth, and Tenth Circuits and make
explicit what was dictum in Lopez-Elias: a petitioner’s state-law conviction for
unauthorized entry of a vehicle with intent to commit a theft therein
constitutes a conviction for an attempted theft offense under 8 U.S.C. §
1101(a)(43)(U). We therefore conclude that Garcia is ineligible to apply for
cancellation of removal under 8 U.S.C. § 1229b(a)(3).
                               CONCLUSION
      For the foregoing reasons, we DENY Garcia’s petition for review.




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                                        No. 12-60490
EMILIO M. GARZA, Circuit Judge, specially concurring:
          I concur in the judgment denying Garcia’s petition for review. I agree
that Garcia is ineligible to seek discretionary cancellation of removal because
his New Mexico auto-burglary conviction constitutes an aggravated felony
under federal immigration law. See 8 U.S.C. § 1229b(a)(3) (providing that the
Attorney General “may cancel removal” if a noncitizen “has not been convicted
of any aggravated felony”).
          I write separately for two reasons. First, Lopez-Elias v. Reno, 209 F.3d
788 (5th Cir. 2000), provides a more straightforward basis for concluding that
Garcia is an aggravated felon: His auto-burglary offense is a “crime of
violence.” Second, because Garcia bears the burden of proving that he is not
an aggravated felon, the majority misapplies the categorical approach in this
case. 1
          The majority unnecessarily reaches a question reserved by dicta in
Lopez-Elias—whether burglary of an automobile with intent to commit a theft
constitutes a generic “attempted theft” offense under 8 U.S.C. § 1101(a)(43)(U).
Ante at 8.        Lopez-Elias’s holding articulates the dispositive principle:
“[B]urglary of a vehicle does constitute a ‘crime of violence,’ justifying
deportation under [8 U.S.C.] § 1101(a)(43)(F).” 209 F.3d at 792; see also id. at
792 n.9 (collecting cases). As the majority recognizes, the Texas burglary
statute in Lopez-Elias is “virtually identical” to the New Mexico statute here.
Ante at 7 n.3. 2 And just as Lopez-Elias’s conviction for a “crime of violence”



         For simplicity’s sake, I use “categorical approach” here to refer to both the categorical
          1

and modified categorical approaches, since the latter “merely helps implement the categorical
approach when a [petitioner] was convicted of violating a divisible statute.” See Descamps v.
United States, 133 S. Ct. 2276, 2285 (2013); ante at 6.
       2 The convictions in both Lopez-Elias and this case satisfied the minimum one-year

imprisonment requirement for crimes of violence. See 8 U.S.C. § 1101(a)(43)(F). Lopez-Elias
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                                      No. 12-60490
rendered him a removable aggravated felon, such a conviction makes Garcia
an aggravated felon ineligible for discretionary relief.                   See 8 U.S.C.
§ 1229b(a)(3); Lopez-Elias, 209 F.3d at 793. Thus, I would simply apply the
holding of Lopez-Elias and conclude that because Garcia was convicted of a
crime of violence, he is an aggravated felon ineligible for discretionary relief.
       More importantly, the majority misapplies the categorical approach in
this case. In the cases cited by the majority, the government bore the burden
of proving that an individual’s state law conviction did constitute a generic
federal offense. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013)
(considering whether a noncitizen committed an “aggravated felony” under the
INA, thereby rendering him removable); Descamps v. United States, 133 S. Ct.
2276, 2283–86 (2013) (considering whether a defendant committed the “violent
felony” of “burglary” under the Armed Career Criminal Act (“ACCA”), thereby
triggering a sentence enhancement). 3 In those cases, “a state offense is a
categorical match with a generic federal offense only if a conviction of the state
offense necessarily involved facts equating to the generic federal offense.”
Moncrieffe, 133 S. Ct. at 1684 (internal quotation marks and alterations
omitted) (emphasis added). Accordingly, courts must determine whether even
the “least of the acts” sufficient to support the prior state law conviction fits
within the federal offense’s definition. Ante at 5 (quoting Moncrieffe, 133 S. Ct.


was sentenced to four years imprisonment under Texas law. Lopez-Elias, 209 F.3d at 790.
Here, likewise, the New Mexico auto-burglary offense is a fourth degree felony, which carries
a sentence of eighteen months. See N.M. Stat. Ann. § 30-16-3(B); id. § 31-18-15.
       3 The Supreme Court’s earlier categorical approach jurisprudence also concerns

situations in which the government bears the burden of proof. See Taylor v. United States,
495 U.S. 575, 601–602 (1990) (discussing government’s burden of proof in seeking sentencing
enhancement under the ACCA), Shepard v. United States, 544 U.S. 13, 18–19, 26 n.5 (2005)
(same). In fact, the Government’s burden of proving the factual basis for sentencing
enhancements informed the Court’s Sixth Amendment concerns that favored the categorical
approach. See Descamps, 133 S. Ct. at 2288 (“The Sixth Amendment contemplates that a
jury—not a sentencing court—will find such facts [that might increase a maximum sentence],
unanimously and beyond a reasonable doubt.”).
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                                  No. 12-60490
at 1684 (internal alterations omitted)). If not, then the government cannot
carry its burden of proof, because it is possible that the state law did not
“involv[e] facts equating to the generic federal offense.” See Moncrieffe, 133 S.
Ct. at 1684.
      But in this case, the immigration statute inverts the burden of proof and
thereby alters the categorical approach’s application in a critical way. Here,
the Government does not bear the burden of proving that Garcia is an
aggravated felon. Rather, it is Garcia, as a noncitizen seeking discretionary
cancellation of removal, who bears the burden of proving by a “preponderance
of the evidence” that he did not commit an aggravated felony under the INA.
8 C.F.R. § 1240.8(d); see also 8 U.S.C. § 1229a(c)(4)(A); Ramos-Torres v. Holder,
637 F.3d 544, 548 (5th Cir. 2011) (“[A]n alien seeking cancellation of removal
has the burden of proof to establish that he is eligible for the relief sought.”).
That is, Garcia must prove that the state law under which he was convicted
encompasses no acts falling within the INA’s aggravated felony definition—
that his conviction necessarily involved facts not equating to the generic
federal offense, to invert Moncrieffe’s formulation. Cf. Moncrieffe, 133 S. Ct. at
1684 (“[A] state offense is a categorical match with a generic federal offense
only if a conviction of the state offense necessarily involved facts equating to
the generic federal offense.” (internal quotation marks and alterations
omitted)).
      To carry his burden, Garcia must do more than prove merely that the
least of the acts criminalized by the New Mexico statute would not constitute
an aggravated felony under the INA. After all, such proof would not foreclose
the possibility that he was convicted for more severe or aggravated acts.
(Indeed, when the Government bears the burden, courts draw the same
inference in the opposite direction: An individual might have committed the
least of the acts covered by the state statute. Id.) Accordingly, in order to
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                                       No. 12-60490
prevail, Garcia must demonstrate that even the most—not the least—of the
acts criminalized by the state statute would not constitute an aggravated
felony. This approach is still “categorical” in its comparison of the elements of
federal and state offenses; the parties may not re-litigate the facts underlying
Garcia’s conviction. See Moncrieffe, 133 S. Ct. at 1690–91. 4 But the inquiry
into the “most” rather than the “least” of the state law’s criminalized acts is
mandated by Garcia’s statutory burden of proving that he is not an aggravated
felon.
         The Fourth Circuit applied the categorical approach in precisely this
manner in Mondragón v. Holder, 706 F.3d 535 (4th Cir. 2013). Mondragón,
like Garcia here, sought discretionary cancellation of removal. 5 Mondragón
conceded that he bore the burden of demonstrating eligibility for such relief,
id. at 544–45 (citing 8 U.S.C. § 1229a(c)(4)(A)), and that he could not prove that
his prior Virginia conviction for assault and battery was “nonviolent” under
the categorical approach, id. at 538, 544. He contended, however, that the
“policies underlying [the categorical approach] may be suited for the
circumstances when the government bears the burden of proof, but . . . [not for]
a proceeding such as this, where the alien bears the burden of proof.” Id. at
544. The court roundly rejected this proposition. Applying the categorical



         Moreover, no party submits, and nothing about the statute suggests, that a non-
         4

categorical, “circumstance-specific” approach would apply. See 8 U.S.C. § 1229b(a)(3)
(providing that Attorney General “may cancel removal” if noncitizen “has not been convicted
of any aggravated felony”); see generally Nijhawan v. Holder, 557 U.S. 29, 36–40 (2009)
(examining other “aggravated felony” provision in the INA and concluding that textual
features and practical considerations require courts to conduct a circumstance-specific,
factual inquiry into whether a prior state fraud offense exceeded a monetary threshold).
       5 Mondragón was deemed removable under the Nicaraguan Adjustment and Central

American Relief Act (“NACARA”). See Mondragón, 706 F.3d at 537, 539. NACARA’s
requirements for discretionary relief and its burdens of proof are identical to those of the
INA, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”). See id. at 539 (discussing IIRIRA’s “crime of violence” definition); id. at 545
(explaining burdens of proof).
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                                       No. 12-60490
approach, the court held that because a “crime of violence” involves the use of
“violent force . . . capable of causing physical pain or injury to another person,”
Mondragón could not meet his burden of proving that “his prior conviction was
not for” a crime of violence because “the crime of conviction could cover conduct
that was violent or nonviolent.” Id. at 545 (emphasis added). 6 In short, “an
inconclusive record of conviction . . . is insufficient to meet an alien’s burden of
demonstrating eligibility for cancellation of removal.” Id.
       Unlike the Fourth Circuit, the majority fails to account for the burden of
proof in today’s opinion. Nonetheless, I concur in the judgment because, here,
it so happens that both the “most” and “least” of the acts sufficient for Garcia’s
auto-burglary conviction would constitute an aggravated felony. The New
Mexico statute, read together with Garcia’s charging document, 7 covers the act
of burglary of an automobile with intent to commit theft. Ante at 7. No matter
how this offense is committed, it necessarily creates a “substantial risk that
physical force will be used against the person or property of another in the
course of committing the offense,” and thus constitutes a crime of violence
under 8 U.S.C. § 1101(a)(43)(F) and our precedents. United States v. Delgado-
Enriquez, 188 F.3d 592, 595 (5th Cir. 1999); accord Lopez-Elias, 209 F.3d at
792 n.9. 8 Thus, I agree that Garcia’s petition must be denied. In my view,
however, such denial is proper because Garcia failed to carry his burden of


       6 While irrelevant to Mondragón’s application of the categorical approach, the Fourth
Circuit’s “crime of violence” definition is narrower than ours, which includes any offense that
creates a “substantial risk that physical force will be used against the person or property of
another in the course of committing the offense.” United States v. Delgado-Enriquez, 188
F.3d 592, 595 (5th Cir. 1999).
       7 As the majority correctly observes, because (and only because) the New Mexico

statute is divisible, the court can consider the charging document under the modified
categorical approach. Ante at 7.
       8 Likewise, under the majority’s approach, both the “most” and “least” of the

criminalized acts would constitute an attempted theft offense under 8 U.S.C. §
1101(a)(43)(U). See ante at 10 (“[W]e conclude that Garcia took the requisite substantial step
toward the commission of a theft offense . . . .”).
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                                        No. 12-60490
proving that the most of the acts criminalized by New Mexico’s auto-burglary
statute, N.M. Stat. Ann. § 30-16-3(B), does not constitute an aggravated felony
under 8 U.S.C. § 1101(a)(43). 9
       Thus far, the courts of appeals that have considered a noncitizen’s
eligibility for discretionary relief have applied the categorical approach
inconsistently. In contrast to the Fourth Circuit in Mondragón, other circuits
have not yet explicitly considered the effect of the noncitizen’s burden of proof.
See Donawa v. U.S. Attorney General, 735 F.3d 1275 (11th Cir. 2013); Sanchez-
Avalos v. Holder, 693 F.3d 1011 (9th Cir. 2012); Jean-Louis v. Attorney General
of U.S., 582 F.3d 462 (3d Cir. 2009). Regrettably, a panel of this Court recently
passed on an opportunity to do so in Sarmientos v. Holder, 742 F.3d 624 (5th
Cir. 2014). 10 The question thus remains open in this Circuit, as in others.



       9   Like the Virginia statute in Mondragón, the Georgia statute analyzed by the
Supreme Court in Moncrieffe illustrates the potential for starkly different outcomes under
the “most” and “least of the acts” approaches. To be clear, Moncrieffe concerned a noncitizen’s
removability, which the Government bears the burden of proving, so the Supreme Court had
no occasion to consider the petitioner’s burden of proving eligibility for discretionary relief.
But if such eligibility had been at issue in Moncrieffe, the statute would have presented the
same problem as that resolved by the Fourth Circuit in Mondragón. The Moncrieffe Court
explained that “the fact of a conviction for possession with intent to distribute marijuana,
standing alone, does not reveal whether either remuneration or more than a small amount
of marijuana was involved,” both of which elements are required for concluding the offense
was not an aggravated felony under the INA, which incorporates the felony definition under
the Controlled Substances Act (“CSA”). Moncrieffe, 133 S. Ct. at 1686. “Moncrieffe’s
conviction could correspond to either the CSA felony or the CSA misdemeanor,” and
“[a]mbiguity on this point,” explained the Court, “means that the conviction did not
‘necessarily’ involve facts that correspond to an offense punishable as a felony under the
CSA.” Id. at 1686–87 (emphasis added). Accordingly, the Government could not demonstrate
Moncrieffe’s removability. Id. at 1687. But if Moncrieffe had sought discretionary relief, he
would have had to show by a preponderance of the evidence that his conviction necessarily
did not involve facts corresponding to an aggravated felony. That is, the identical statutory
“[a]mbiguity” resolved in favor of a noncitizen challenging his removability in Moncrieffe
must be resolved against a noncitizen bearing the burden of proving eligibility for
discretionary relief. Id.
        10 Sarmientos followed the Eleventh Circuit in Donawa in holding that a noncitizen

was not ineligible for discretionary relief, since the “least of the acts” criminalized by a state
law under which he was convicted did not constitute an aggravated felony. 742 F.3d at 631.
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                                   No. 12-60490
      A future court should take up the important task of clarifying the
application of the categorical approach to cases such as this one—where a
noncitizen must prove he is eligible for discretionary relief by virtue of not
having committed an aggravated felony under the INA. To give effect to both
the categorical approach and the statutory burden of proof, courts must find
the noncitizen eligible only if he shows that even the most of the acts sufficient
for his prior state law conviction would not constitute an aggravated felony.
But because I agree that Garcia is not eligible to seek discretionary relief, I
concur in the judgment only.




The opinion, however, did not consider the burden of proof’s effect on the categorical
approach.
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