April 28, 2016
Petition for Review of a Decision of the Board of Immigration
Appeals (Agency Case No. A061-490-292) Immigration Judge:
Honorable Walter A. Durling.
M. Hubbard, Esq. (ARGUED) Bank Towers Building Counsel for
Matthew A. Connelly, Esq. (ARGUED) Thomas. W. Hussey, Esq.
United States Department of Justice Office of Immigration
Litigation Counsel for Respondent
Before: McKEE, JORDAN, and VANASKIE, Circuit Judges.
VANASKIE, Circuit Judge.
appeal requires us to determine whether Wilson Emilio Peguero
Mateo's conspiracy plea for Robbery of a Motor Vehicle
under Pennsylvania law qualifies as a "crime of
violence" under 18 U.S.C. § 16(b), as incorporated
into 8 U.S.C. § 1101(a)(43)(F) of the Immigration and
Nationality Act ("INA"). In light of the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), and our decision in Baptiste v.
Attorney General, 841 F.3d 601, 621 (3d Cir. 2016),
petition for cert. filed (U.S. Feb. 6, 2017) (No.
16-978), we hold that § 16(b), as incorporated into the
INA, is unconstitutionally vague. We will therefore grant the
Petition for Review, vacate the order of removal, and remand
for further proceedings.
is a twenty-one-year-old native and citizen of the Dominican
Republic who was admitted to the United States on August 11,
2010 as a lawful permanent resident. On June 17, 2013, he
pleaded guilty to the felony charge of criminal conspiracy
pursuant to 18 Pa. Cons. Stat. § 903. The underlying
offense for his conspiracy plea was Robbery of a Motor
Vehicle under Pennsylvania law, which dictates that "[a]
person commits a felony of the first degree if he steals or
takes a motor vehicle from another person in the presence of
that person or any other person in lawful possession of the
motor vehicle." 18 Pa. Cons. Stat. § 3702. On
December 3, 2013, Mateo was convicted and sentenced to eleven
to twenty-three months' confinement, and thirty-six
January 16, 2014, the United States Department of Homeland
Security ("DHS") served Mateo with a Notice to
Appear, charging Mateo as removable as an alien convicted of
an aggravated felony pursuant to § 237(a)(2)(A) of the
INA, 8 U.S.C. § 1227(a)(2)(A). Specifically, DHS stated
that Mateo was subject to removal because his Robbery of a
Motor Vehicle conviction constituted an aggravated felony
under INA § 237(a)(2)(A)(iii), 8 U.S.C. §
1227(a)(2)(A)(iii), and was a "crime of violence"
as defined in INA § 101(a)(43)(F), 8 U.S.C. §
1101(a)(43)(F). To define a "crime of violence,
" the INA incorporates 18 U.S.C. § 16, which
defines the phrase as follows:
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.
filed a Motion to Terminate Proceedings, challenging his
removability on the ground that Robbery of a Motor Vehicle is
not an aggravated felony because it is not a crime of
violence as defined in § 16(b). The Immigration Judge
("IJ") disagreed, finding that Robbery of a Motor
Vehicle is a crime of violence, and sustained the charge of
removability based on Mateo's conspiracy
appealed the IJ's decision to the Board of Immigration
Appeals ("BIA"). The BIA adopted and affirmed the
IJ's decision with regard to Mateo's removability as
an alien convicted of conspiracy to commit an aggravated
felony that was deemed a crime of violence. The BIA did not
address the remaining aspects of the ...