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Mateo v. Attorney General United States of America

United States Court of Appeals, Third Circuit

September 6, 2017

WILSON EMILIO PEGUERO MATEO, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

          Argued April 28, 2016

         On Petition for Review of a Decision of the Board of Immigration Appeals (Agency Case No. A061-490-292) Immigration Judge: Honorable Walter A. Durling.

          Tracey M. Hubbard, Esq. (ARGUED) Bank Towers Building Counsel for Petitioner

          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.

          OPINION

          VANASKIE, Circuit Judge.

         This 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.

         I.

         Mateo 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 months' probation.

         On 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).[1] To define a "crime of violence, " the INA incorporates 18 U.S.C. § 16, which defines the phrase as follows:

         The 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.

         Mateo 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 conviction.[2]

         Mateo 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 ...


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