Santiago Diaz-Esparza v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [16-60004 Affirmed] Judge: TMR, Judge: ECP, Judge: JEG. Mandate pull date is 10/30/2017 [16-60004]

Case: 16-60004

Document: 00514145061

Page: 1

Date Filed: 09/06/2017

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

No. 16-60004
Summary Calendar

FILED
September 6, 2017
Lyle W. Cayce
Clerk

SANTIAGO ALEJANDRO DIAZ-ESPARZA, also known as Santiago Alejandro
Diaz,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A096 567 521
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
In 2015, Santiago Alejandro Diaz-Esparza, a native and citizen of Mexico

who had been granted lawful permanent resident status, was ordered removed
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) based on his 2014 aggravated felony
conviction and two-year prison sentence for evading arrest with a vehicle in
violation of Texas Penal Code § 38.04. The Board of Immigration Appeals

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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(BIA) dismissed Diaz-Esparza’s appeal of the removal order and his motion for
reconsideration.

Diaz-Esparza has filed petitions for review of the BIA’s

orders, in which he asserts that his prior conviction was not an aggravated
felony under 8 U.S.C. § 1101(a)(43)(F) because it did not constitute a crime of
violence (COV) under 18 U.S.C. § 16(b) and, further, that § 16(b) is
unconstitutionally vague in light of Johnson v. United States, 135 S. Ct. 2552,
2557 (2015).
We generally lack jurisdiction to review a removal order against an alien
who is removable under § 1227(a)(2)(A)(iii) based on the commission of an
aggravated felony. 8 U.S.C. § 1252(a)(2)(C); see Marquez-Marquez v. Gonzales,
455 F.3d 548, 560-61 (5th Cir. 2006). However, review nevertheless remains
available for constitutional claims or questions of law raised in a petition for
review. § 1252(a)(2)(D); see Marquez-Marquez, 455 F.3d at 560-61. Whether a
statute of conviction constitutes an aggravated felony under § 1101(a)(43) is a
question of law over which we retain jurisdiction. Arce-Vences v. Mukasey, 512
F.3d 167, 170-71 (5th Cir. 2007).

Likewise, “[w]hether a statute is

unconstitutionally vague is a question of law.” United States v. GonzalezLongoria, 831 F.3d 670, 674 (5th Cir. 2016) (en banc), petition for cert. filed
(Sept. 29, 2016) (No. 16-6259). Such questions of law are subject to de novo
review. Id.
Section 16(b) defines a COV to include a felony crime “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.” § 16(b). In
Sanchez-Ledezma, 630 F.3d at 449-51, we concluded that the § 38.04 offense of
evading arrest with a vehicle is categorically a COV under § 16(b) and thus an
aggravated felony as defined by § 1101(a)(43)(F). In Johnson, 135 S. Ct. at
2557, the Supreme Court struck as unconstitutionally vague the residual

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clause of the Armed Career Criminal Act (ACCA), which defined a violent
felony as an offense involving “conduct that presents a serious potential risk of
physical injury to another.”
Diaz-Esparza first argues that we should join certain other circuits in
holding that § 16(b) is facially unconstitutional in light of Johnson, 135 S. Ct.
2551. However, that issue is foreclosed by our en banc decision to the contrary
in Gonzalez-Longoria, 831 F.3d at 677. See United States v. Alcantar, 733 F.3d
143, 145-46 (5th Cir. 2013). Diaz-Esparza’s additional argument that § 16(b)
is unconstitutional as applied to him likewise fails, as the standard of § 16(b)
can be straightforwardly applied to his prior conviction under § 38.04 for
evading arrest with a vehicle. See Gonzalez-Longoria, 831 F.3d at 677-78; see
also Sanchez-Ledezma, 630 F.3d at 449-51. Finally, Diaz-Esparza’s argument
that Johnson undermined Sanchez-Ledezma is unpersuasive. Because the two
decisions involved different statutory provisions, the former did not
unequivocally overrule the latter. See United States v. Traxler, 764 F.3d 486,
489 (5th Cir. 2014); Alcantar, 733 F.3d at 145-46.
In light of the foregoing, Diaz-Esparza’s petitions for review are
DENIED.

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