Cite as 23 I&N Dec. 766 (BIA 2005) Interim Decision #3514 

In re Miguel Antonio BRIEVA-Perez, Respondent 

File A36 099 993 - Houston 

Decided June 7, 2005 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals 

(1) The offense of unauthorized use of a motor vehicle in violation of section 31.07(a) of 

the Texas Penal Code is a crime of violence under 18 U.S.C. § 16(b) (2000) and is 

therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and 

Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000). 

(2) An alien who is removable on the basis of his conviction for a crime of violence is 

ineligible for a waiver under former section 212(c) of the Immigration and Nationality 

Act, 8 U.S.C. § 1182(c) (1994), because the aggravated felony ground of removal with 

which he was charged has no statutory counterpart in the grounds of inadmissibility 

under section 212(a) of the Act, 8 U.S.C. § 1182(a) (2000). 

FOR RESPONDENT: William F. Harmeyer, Esquire, Houston, Texas 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Lisa Luis, Assistant Chief 

Counsel 

BEFORE: Board Panel: HOLMES, HURWITZ and MILLER, Board Members. 

MILLER, Board Member: 

In a decision dated October 15, 2003, an Immigration Judge found the 

respondent removable as charged and denied his application for a waiver 

under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1182(c) (1994). The respondent has appealed, arguing that his conviction 

for “unauthorized use of a motor vehicle” is not a crime of violence under 

section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2000). 

Alternatively, he argues that the Immigration Judge erred in finding him 

ineligible for a section 212(c) waiver for failure to demonstrate a ground of 

inadmissibility comparable to the ground on which he was found removable. 

The respondent’s appeal will be dismissed. 

766
Cite as 23 I&N Dec. 766 (BIA 2005) Interim Decision #3514 

I. FACTUAL AND PROCEDURAL BACKGROUND

The respondent is a native and citizen of Colombia who was admitted to the 

United States in 1980 as a lawful permanent resident. On June 17, 1993, he 

pleaded guilty in a Texas State court to “unauthorized use of a motor vehicle” 

in violation of section 31.07(a) of the Texas Penal Code. Adjudication was 

initially deferred and an order of 5 years’ probation was entered. After failure 

to comply with the conditions of his probation, the respondent was 

adjudicated guilty on August 15, 1995, and was sentenced to 5 years’ 

confinement. He served less than a year of this sentence. 

In February 2003, the Immigration and Naturalization Service (now the 

Department of Homeland Security) commenced removal proceedings based 

on the respondent’s conviction. Initially, the Service charged the respondent 

under the aggravated felony ground for removal, section 237(a)(2)(A)(iii) of 

the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), for a conviction relating to a 

“theft offense” under section 101(a)(43)(G). The Service subsequently 

withdrew this charge and substituted an aggravated felony “crime of violence” 

charge under section 101(a)(43)(F) of the Act. 

The Immigration Judge found that the Service met its burden of 

demonstrating that the respondent’s offense was an aggravated felony crime 

of violence under controlling circuit court precedent. See United States v. 

Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999) (holding that a conviction 

under the Texas statute prohibiting “unauthorized use of a motor vehicle” was 

a crime of violence under a provision of the United States Sentencing 

Guidelines). The Immigration Judge also found that the respondent was 

ineligible for a waiver under section 212(c) of the Act because he had not 

demonstrated a comparable ground of inadmissibility. As no other relief was 

sought, the Immigration Judge ordered the respondent removed from the 

United States to Colombia. 

II. ISSUES 

In this appeal we must first decide whether the respondent’s offense was a 

crime of violence and therefore an aggravated felony. If we conclude that he 

was convicted of a crime of violence, we must then determine if there is a 

comparable ground of inadmissibility for that ground of removal so as to 

provide a basis for a section 212(c) waiver. 

III. AGGRAVATED FELONY “CRIME OF VIOLENCE” 

Section 31.07(a) of the Texas Penal Code prohibits the “unauthorized use 

of a motor vehicle,” defined as “intentionally or knowingly operat[ing] 

another’s boat, airplane, or motor-propelled vehicle without the effective 

consent of the owner.” Tex. Penal Code Ann. § 31.07(a) (Vernon 2004). The 

767
Cite as 23 I&N Dec. 766 (BIA 2005) Interim Decision #3514 

question is whether the respondent’s conviction under this provision is for an 

aggravated felony “crime of violence” under section 101(a)(43)(F) of the Act. 

That section includes within the definition of an “aggravated felony” 

a crime of violence (as defined in section 16 of title 18, United States Code, but not 

including a purely political offense) for which the term of imprisonment [is] at least 

one year. 

In turn, 18 U.S.C. § 16 (2000) 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. 

The respondent’s offense is not a § 16(a) offense because the Texas statute 

under which he was convicted does not include the use of force as an element 

of the offense. The focus in this case, therefore, is on whether his offense 

meets the requirements of § 16(b). There is no dispute that the respondent 

was convicted of a felony offense. The only question is whether the offense 

is one 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(b). 

In United States v. Galvan-Rodriguez, supra, the United States Court of 

Appeals for the Fifth Circuit addressed the question whether a Texas 

conviction for “unauthorized use of a motor vehicle” was a conviction for an 

aggravated felony “crime of violence” in the context of a sentencing 

enhancement determination. Under the applicable United States Sentencing 

Guidelines, the question whether an enhancement was appropriate turned on 

whether the respondent’s conviction was for a “crime of violence” within the 

meaning 18 U.S.C. § 16. 

The court in Galvan-Rodriguez began its analysis by explaining that the 

phrase “by its nature” in 18 U.S.C. § 16(b) “requires courts to employ a 

categorical approach—without examining the underlying facts surrounding 

the conviction—in determining whether an offense constitutes a crime of 

violence.” United States v. Galvan-Rodriguez, supra, at 219. The court then 

identified a number of offenses that, by their nature, involve a substantial risk 

that physical force may be used against the person or property of another 

during the course of their commission and are therefore crimes of violence 

under § 16(b), including indecency with a child, United States v. VelazquezOvera, 100 F.3d 418 (5th Cir. 1996); burglary of a vehicle, United States v. 

Ramos-Garcia, 95 F.3d 369 (5th Cir. 1996); burglary of an automobile or 

nonresidential building, United States v. Rodriguez-Guzman, 56 F.3d 18 (5th 

Cir. 1995); and burglary of a habitation, United States v. Guadardo, 40 F.3d 

768
Cite as 23 I&N Dec. 766 (BIA 2005) Interim Decision #3514 

102 (5th Cir. 1994). Comparing these offenses to the crime at issue, the court 

reasoned as follows: 

Just as burglary of a vehicle involves a substantial risk that property might be 

damaged or destroyed in the commission of the offense, the unauthorized use of a 

vehicle likewise carries a substantial risk that the vehicle might be broken into, 

‘stripped,’ or vandalized, or that it might become involved in an accident, resulting 

not only in damage to the vehicle and other property, but in personal injuries to 

innocent victims as well. 

United States v. Galvan-Rodriguez, supra, at 219. The court therefore held 

that the Texas offense of unauthorized use of a motor vehicle qualifies as a 

crime of violence under 18 U.S.C. § 16(b). 

Although Galvan-Rodriguez interpreted § 16(b) in the context of the 

Sentencing Guidelines, the court’s holding in that case is controlling in 

determining the scope of § 16(b) as referenced in the immigration laws at 

section 101(a)(43)(F) of the Act. See United States v. Hernandez-Avalos, 

251 F.3d 505 (5th Cir. 2001) (rejecting different interpretations of the same 

statutory provision in immigration and criminal cases). 

The respondent’s argument that Galvan-Rodriguez has been overruled by 

United States v. Charles, 301 F.3d 309 (5th Cir. 2002), is mistaken. The court 

in Charles addressed whether simple automobile theft is a crime of violence 

under the Sentencing Guidelines at U.S.S.G. § 4B1.2(a)(2). See 18 U.S.C.A. 

ch. 4, § 4B1.2(a)(2) (West Supp. 2005). Unlike the Sentencing Guidelines 

provision considered in Galvan-Rodriguez, § 4B1.2(a)(2) did not refer to the 

definition of a crime of violence in 18 U.S.C. § 16. Rather, it referred, in 

relevant part, to an offense that “involves conduct that presents a serious 

potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). The 

court in Charles pointed out a number of differences between the 

requirements of § 4B1.2(a)(2) and those of 18 U.S.C. § 16(b). Notably, 

“section16(b) applies to the use of force against person and property, whereas 

§ 4B1.2(a)(2) only applies to conduct that presents a serious potential risk of 

physical injury to another person.” United States v. Charles, supra, at 311-12. 

Moreover, § 16(b) focuses on the nature of the offense, whereas § 4B1.2(a)(2)

focuses on conduct. Id. at 312. The court in Charles concluded that “we limit 

our holding in United States v. Galvan-Rodriguez, to its property aspects and 

to § 16 cases.” Id. at 314 (citation omitted); see also United States v. Lee, 

310 F.3d 787, 790 (5th Cir. 2002) (noting that the Galvan-Rodriquez holding 

is limited to 18 U.S.C. § 16(b) cases). This modification of the scope of the 

holding in Galvan-Rodriguez does not affect its force as controlling precedent 

as applied to the respondent’s conviction. 

While the appeal in this case was pending, the United States Supreme Court 

issued a decision addressing the meaning of the term “crime of violence” in 

18 U.S.C. § 16. Leocal v. Ashcroft, 125 S. Ct. 377 (2004). In Leocal, the 

Court found that driving under the influence of alcohol (“DUI”) and causing 

769
Cite as 23 I&N Dec. 766 (BIA 2005) Interim Decision #3514 

serious bodily injury in violation of a Florida statute was not a “crime of 

violence.” In so holding, the Court found that the reference to “use of force” 

in 18 U.S.C. § 16 requires “a higher degree of intent than negligent or merely 

accidental conduct.” Id. at 382. The Court concluded that the reference to 

“use of force” in both § 16(a) and § 16(b) must be given “an identical 

construction, requiring a higher mens rea than the merely accidental or 

negligent conduct involved in a DUI offense.” Id. at 383. 

Although some of the discussion in United States v. Galvan-Rodriguez, 

supra, at 219, regarding the “substantial risk of use of force” refers to risks 

associated with accidental or negligent conduct,1

 other aspects of the court’s 

analysis refer to risks related to intentional, deliberate, or at least reckless use 

of force, e.g., the risk that “the vehicle might be broken into, ‘stripped,’ or 

vandalized.” In a recent district court decision, the court found that the Fifth 

Circuit’s holding in Galvan-Rodriquez, i.e., that a conviction under the Texas 

statute prohibiting “unauthorized use of a motor vehicle” is a crime of 

violence under § 16(b), remains binding after Leocal v. Ashcroft. Ramirez v. 

Ashcroft, 361 F. Supp. 2d 650 (S.D. Texas 2005). Putting aside those aspects 

of the analysis in Galvan-Rodriguez that might be called into question by 

Leocal, the court in Ramirez found that the nature of the offense was such that 

it involved a substantial risk that force would be used to cause property 

damage during the commission of the offense. The court reasoned: 

An unauthorized driver is likely to use physical force to gain access to a vehicle and 

to drive it. This is a sufficient risk of the use of physical force in the course of 

committing the offense to find, after Leocal, that unauthorized use of a motor vehicle 

is a “crime of violence” under section 16(b). 

Id. at 656. The district court therefore concluded that “Galvan-Rodriguez 

appears to remain good law after Leocal and as such is binding on this court.” 

Id. We, too, find that Galvan-Rodriquez remains controlling law in cases 

arising in the Fifth Circuit, and that the Immigration Judge correctly applied 

its holding to the facts in this case. Accordingly, we conclude that the 

respondent’s offense was a crime of violence and that he is therefore 

removable as an alien convicted of an aggravated felony. 

IV. COMPARABLE GROUND OF INADMISSIBILITY FOR 

SECTION 212(c) 

The second issue on appeal is whether the Immigration Judge correctly 

determined that the respondent is ineligible for a waiver of inadmissibility 

under former section 212(c) of the Act for lack of a comparable ground of 

For example, United States v. Galvan-Rodriguez, supra, at 219, refers, in part, to the risk 

that vehicles taken for unauthorized use may become involved in accidents resulting in 

property damage or injury to innocent victims. 

770 

1 
Cite as 23 I&N Dec. 766 (BIA 2005) Interim Decision #3514 

inadmissibility in section 212(a) of the Act, 8 U.S.C. § 1182(a) (2000). 

Section 212(c) provides a discretionary waiver for “[a]liens lawfully admitted 

for permanent residence who temporarily proceeded abroad voluntarily and 

not under an order of deportation, and who are returning to a lawful 

unrelinquished domicile of seven consecutive years.” A section 212(c) waiver 

is available in deportation proceedings for nondeparting permanent resident 

aliens to waive a deportation ground for which there is a comparable ground 

of inadmissibility. Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 

1990; A.G. 1991); Matter of Wadud, 19 I&N Dec. 182 (BIA 1984). 

The United States Supreme Court recently held that the section 212(c) 

waiver, although repealed by the Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 

3009-546, remains available in removal proceedings “for aliens . . . whose 

convictions were obtained through plea agreements and who, notwithstanding 

those convictions, would have been eligible for § 212(c) relief at the time of 

their plea under the law then in effect.” INS v. St. Cyr, 533 U.S. 289, 290 

(2001). The Court in St. Cyr did not address the issue of comparable 

grounds.2

 Recently enacted regulations, however, make clear that the 

statutory counterpart requirement for section 212(c) eligibility applies to 

respondents in removal proceedings who seek a waiver under the holding in 

St. Cyr. See Executive Office for Immigration Review; Section 212(c) Relief 

for Aliens with Certain Criminal Convictions Before April 1, 1997, 69 Fed. 

Reg. 57,826, (Sept. 28, 2004) (to be codified at 8 C.F.R. § 1212.3(f)(5)); see 

also Matter of Blake, 23 I&N Dec. 722 (BIA 2005) (applying the regulation 

to find no comparable ground of inadmissibility in section 212(a) for a 

conviction for “sexual abuse of a minor” under section 101(a)(43)(A) of the 

aggravated felony definition).3 

In Matter of Blake, supra, after reviewing our precedent decisions on the 

question of comparable grounds, we concluded that “whether a ground of 

deportation or removal has a statutory counterpart in the provisions for 

exclusion or inadmissibility turns on whether Congress has employed similar 

language to describe substantially equivalent categories of offenses.” Id. at 

728. In Blake, we found the mere overlap between “sexual abuse of a minor” 

and some crimes involving moral turpitude insufficient to demonstrate that the 

provisions were statutory counterparts. 

2 The cases before the Court in St. Cyr involved convictions for aggravated felony drug 

offenses, a category of offenses recognized as comparable to the section 212(a) ground of 

inadmissibility for drug trafficking offenses. Matter of Meza, 20 I&N Dec. 257 (BIA 1991). 

3 As we observed in Matter of Blake, supra, at 726-27, the Supplementary Information to 

the final rule includes a commenter’s reference to “Murder, Rape, or Sexual Abuse of a 

Minor,” as well as “Crime of Violence,” as aggravated felony categories that would have 

no comparable ground of inadmissibility. See 69 Fed. Reg. at 57,831-32. 

771 
Cite as 23 I&N Dec. 766 (BIA 2005) Interim Decision #3514 

In making the comparison in this case, the relevant question is whether the 

“crime of violence” aggravated felony ground, as defined in section 

101(a)(43)(F) of the Act, is substantially equivalent to a ground of 

inadmissibility in section 212(a) of the Act.4

 As employed in section 

101(a)(43(F), 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. 

18 U.S.C. § 16. 

Some of the most common crimes falling within the definition of a “crime 

of violence” do not necessarily involve moral turpitude. For example, the 

“crime of violence” definition encompasses offenses such as burglary or 

breaking and entering, which involve entry into a building by means of 

physical force. Such offenses, however, would not generally be considered 

crimes of moral turpitude unless accompanied by the intent to commit a 

morally turpitudinous crime, such as larceny, after entering the building. See, 

e.g., Matter of M-, 2 I&N Dec. 721, 723 (BIA, A.G. 1946). Similarly, simple 

assault offenses involving the infliction of physical injury do not, in the 

absence of aggravating factors, involve moral turpitude. Matter of Fualaau, 

21 I&N Dec. 475 (BIA 1996). They may, however, constitute crimes of 

violence. Matter of Martin, 23 I&N Dec. 491 (BIA 2002). 

The respondent’s unauthorized use of a motor vehicle, although an 

aggravated felony crime of violence, is not generally considered a crime 

involving moral turpitude. In Ramirez v. Ashcroft, supra, the court found that 

unauthorized use of a motor vehicle is not a crime involving moral turpitude, 

reasoning as follows: 

Unauthorized use of a motor vehicle can encompass acts such as using a vehicle in a 

manner that exceeds the scope of the owner’s consent. Although the substantial risk 

that violence against property may be used in the commission of the offense justifies 

classifying the offense as an aggravated felony, as that statutory term has been defined 

in this circuit, the moral turpitude analysis is not based on a substantial likelihood that 

base, violent, or depraved acts will occur. Rather, if a statute can be violated by both 

acts that do and do not involve moral turpitude, the crime does not involve moral 

turpitude for the purpose of the Immigration Act. 

The respondent argues that his crime is a “theft offense” for purposes of comparing the 

moral turpitude ground of inadmissibility. However, the respondent has not been charged 

with an aggravated felony “theft offense.” The comparable ground test for section 212(c) 

requires that the offense charged, i.e., “crime of violence,” have an analogous ground of 

inadmissibility. Whether the respondent could be found inadmissible for a “theft offense” 

amounting to a crime of moral turpitude is not relevant to the critical question whether the 

“crime of violence” removal ground has a comparable ground of inadmissibility. 

772

4 
Cite as 23 I&N Dec. 766 (BIA 2005) Interim Decision #3514 

Ramirez v. Ashcroft, supra, at 658 (citations omitted); see also Matter of M-, 

2 I&N Dec. 686, 687 (C.O.; BIA 1946) (finding that joyriding is not a crime 

involving moral turpitude); Matter of D-, 1 I&N Dec. 143 (BIA 1941) 

(finding that driving an automobile without the consent of the owner is not a 

crime involving moral turpitude). 

Although there need not be perfect symmetry in order to find that a ground 

of removal has a statutory counterpart in section 212(a), there must be a closer 

match than that exhibited by the incidental overlap between section 

101(a)(43)(F) (crime of violence) and section 212(a)(2)(A)(i)(I) (crime 

involving moral turpitude). The distinctly different terminology used to 

describe the two categories of offenses and the significant variance in the 

types of offenses covered by these two provisions lead us to conclude that 

they are not “statutory counterparts” for purposes of section 212(c) eligibility. 

We therefore agree with the Immigration Judge that the respondent is 

ineligible for a section 212(c) waiver. Accordingly, the respondent’s appeal 

will be dismissed. 

ORDER: The respondent’s appeal is dismissed. 

773