In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2397

JOSE M. VACA-TELLEZ, also 

known as JOSE VACA, also

known as JOSE BACA,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney

General of the United States,

Respondent.

____________

Petition for Review of an Order of the

Board of Immigration Appeals.

A35-623-368

____________

ARGUED APRIL 4, 2008—DECIDED SEPTEMBER 2, 2008

____________

Before POSNER, KANNE and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Jose Manuel Vaca-Tellez is a

citizen of Mexico who was admitted to the United States

as a lawful, permanent resident alien in 1978. In 2002,

he committed a felony that led to the commencement of

removal proceedings by U.S. Immigration and Customs

Enforcement (“ICE”). An Immigration Judge (“IJ”) ordered
2 No. 07-2397

Although the Certified Statement of Conviction/Disposition 1

from the Circuit Court of Cook County does not specify the

charge to which Vaca-Tellez pled guilty, the charge of burglary

detailed in the information was the only pending charge that

appears on that document.

that Vaca-Tellez be removed to Mexico, and the Board of

Immigration Appeals (“BIA”) affirmed that decision. VacaTellez petitioned this court for review. Because there

were no legal errors in the decision, we deny the petition

for review.

I.

In July 2002, the State of Illinois charged Vaca-Tellez

with burglary in violation of 720 ILCS 5/19-1(a). The

criminal information specified that Vaca-Tellez “committed

the offense of burglary in that he, without authority,

knowingly entered into a motor vehicle, to wit: a 1995

Chevrolet, property of Suzanna Alaniz, with the intent to

commit the offense of theft, therein, in violation of Chapter

720, Act 5, Section 19-1(a)[.]” This crime is characterized

under Illinois law as a Class 2 felony. See 720 ILCS 5/19-

1(b). For this offense, a sentencing judge may impose,

alone or in combination, a period of probation, a fine,

restitution, and a term of imprisonment, among other

things. 730 ILCS 5/5-5-3(b). Any term of imprisonment

for a Class 2 felony may not be less than three years nor

more than seven years. 730 ILCS 5/5-8-1(a)(5). In August

2002, Vaca-Tellez pled guilty to that charge and was

sentenced to eighteen months’ probation. Vaca-Tellez’s 1

adherence to the conditions of his probation was unfortu-
No. 07-2397 3

The Certified Statement again did not specify the charge, but 2

at that point in the proceedings, the probation violation was

the only charge pending. The court revoked the probation the

same day the guilty plea was entered, and sentenced Vaca-Tellez

to three years’ imprisonment, both strong indicators that VacaTellez admitted guilt to violating the conditions of probation

from his sentence for burglary.

nately short-lived. On September 16, 2002, a scant six

weeks after the guilty plea, he was charged with violating his probation. A charge of violating probation was

entered again on November 12, 2002, and a warrant was

issued for his arrest. A little more than three years passed

before law enforcement again caught up with Vaca-Tellez.

On January 31, 2006, Vaca-Tellez pled guilty to the probation violation. Illinois law provides that, for a violation 2

of probation, a court may continue the existing sentence

or impose any sentence that was available under section

5/5-5-3(b). 730 ILCS 5/5-6-4(e). The court revoked VacaTellez’s probation and sentenced him to a term of three

years’ imprisonment, the minimum term allowed for the

crime of burglary.

Approximately one year later, ICE commenced removal

proceedings against Vaca-Tellez by filing a Notice to

Appear (“NTA”) with the Immigration Court. The NTA

specified that Vaca-Tellez was subject to removal because

he had been convicted of an aggravated felony as defined

by 8 U.S.C. §§ 1101(a)(43)(G) and 1101(a)(43)(U). The

original NTA charged that, on January 31, 2006, VacaTellez had been convicted “for the offense of intent to

commit the offense of theft” in violation of 720 ILCS 5/19-
4 No. 07-2397

1(a). With the agreement of the parties, the IJ amended

the NTA to state that, on August 6, 2002, Vaca-Tellez

was convicted of the offense of burglary in violation of

720 ILCS 5/19-1(a). Vaca-Tellez admitted that he had

been convicted of burglary but denied that he was

subject to removal as an aggravated felon. The IJ relied on

this court’s decision in United States v. Martinez-Garcia,

268 F.3d 460 (7th Cir. 2001), in holding that a burglary

with intent to commit theft under the Illinois statute was

an aggravated felony because it was an “attempted theft

offense.” The IJ rejected Vaca-Tellez’s contention that

his conviction did not qualify as a felony because he

originally was sentenced only to probation. The IJ noted

that the Illinois statute allowed the state court judge to resentence the defendant on the original charge for any

violation of probation, and the state court had done

so here, imposing a three-year term of imprisonment. The

BIA dismissed Vaca-Tellez’s subsequent appeal, agreeing

with the IJ that the Illinois crime of burglary with intent

to commit theft was an aggravated felony under MartinezGarcia. The BIA also agreed that Vaca-Tellez’s three-year

sentence for violating his original sentence of probation

satisfied the statutory requirement for a sentence in

excess of one year on the original conviction. Vaca-Tellez

petitions this court for review.

II.

In his petition, he contends that the IJ incorrectly construed his conviction for burglary to an automobile as

an aggravated felony. He argues that the BIA
No. 07-2397 5

mischaracterized his conviction as one for attempted

theft. He also asserts that Martinez-Garcia is distinguishable and not determinative of his claim. The government contends that we lack jurisdiction over Vaca-Tellez’s

petition because 8 U.S.C. § 1252(a)(2)(C) deprives this

court of jurisdiction to review petitions filed by aliens

who are subject to removal as aggravated felons. We

begin by addressing our jurisdiction to review the claim.

Our jurisdiction is limited because the “INA, as amended

by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, strips the judiciary of authority to

review any final order of removal against an alien who

is removable by reason of having committed an aggravated felony.” Gattem v. Gonzales, 412 F.3d 758, 762 (7th

Cir. 2005). See also 8 U.S.C. §§ 1252(a)(2)(C),

1227(a)(2)(A)(iii). The BIA determined that Vaca-Tellez

committed an aggravated felony but we nonetheless

retain the authority to determine our jurisdiction. Eke v.

Mukasey, 512 F.3d 372, 378 (7th Cir. 2008); Gattem, 412

F.3d at 762; Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th

Cir. 2000). Moreover, the REAL ID Act of 2005 amended

section 1252(a)(2)(C) of the INA to allow this court to

review constitutional claims or questions of law. See 8

U.S.C. § 1252(a)(2)(D); Eke, 512 F.3d at 378 (stating the

REAL ID Act “put an end to any doubt” that we are

authorized to consider the question whether DHS correctly determined that a petitioner’s convictions were

aggravated felonies for the purposes of the immigration

laws). Thus, to the extent that the BIA’s holding turned

on its construction of the immigration statute at issue, it

presents a question of law that Congress has given us the
6 No. 07-2397

power to address. Gattem, 412 F.3d at 762. See also Yang

v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997) (“[w]hen judicial

review depends on a particular fact or legal conclusion,

then a court may determine whether that condition exists.”). We therefore have jurisdiction to determine

whether, as a matter of law, Vaca-Tellez is removable as

an aggravated felon, and in particular whether the

crime for which he was convicted in Illinois qualifies

him for that status. Eke, 512 F.3d at 378; Gattem, 412 F.3d at

762. See also Moreno-Cebrero v. Gonzales, 485 F.3d 395, 398

(7th Cir. 2007) (where a petition from a person ordered

removed as an aggravated felon presents a straight-forward question of law, the court has jurisdiction over

the petition). Our review of the determination that VacaTellez committed an aggravated felony is de novo. Eke,

512 F.3d at 378; Martinez-Garcia, 268 F.3d at 464.

Vaca-Tellez first contends that his removal order is not

supported by clear and convincing evidence that he is

subject to removal as an aggravated felon as that term

is defined by 8 U.S.C. §§ 1101(a)(43)(G) and (U) (hereafter “Subsection G” and “Subsection U”). Under Subsection G, an aggravated felony consists of “a theft offense

(including receipt of stolen property) or burglary offense

for which the term of imprisonment [is] at least one

year.” Subsection U adds that an attempt or conspiracy

to commit any of the listed offenses, including a theft

offense, also qualifies as an aggravated felony. The government sought to remove Vaca-Tellez as an aggravated

felon on the theory that his conviction for burglary to a

motor vehicle with intent to commit a theft therein is an

attempted theft offense for the purposes of immigration
No. 07-2397 7

law. We have previously defined the term “theft offense”

for the purposes of the INA as “requiring the taking of

property (exercise of control over property), without the

owner’s consent, with the intent to temporarily or permanently deprive the owner of the rights and benefits of

ownership.” Martinez-Garcia, 268 F.3d at 465. See also

Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir.

2001). Under Illinois law, a person commits theft when

he knowingly: 

(1) Obtains or exerts unauthorized control over property of the owner; or 

(2) Obtains by deception control over property of the

owner; or 

(3) Obtains by threat control over property of the

owner; or 

(4) Obtains control over stolen property knowing the

property to have been stolen or under such circumstances as would reasonably induce him to believe

that the property was stolen; or 

(5) Obtains or exerts control over property in the

custody of any law enforcement agency which is

explicitly represented to him by any law enforcement

officer or any individual acting in behalf of a law

enforcement agency as being stolen, and

(A) Intends to deprive the owner permanently of

the use or benefit of the property; or 

(B) Knowingly uses, conceals or abandons the

property in such manner as to deprive the

owner permanently of such use or benefit; or 
8 No. 07-2397

(C) Uses, conceals, or abandons the property

knowing such use, concealment or abandonment

probably will deprive the owner permanently

of such use or benefit.

720 ILCS 5/16-1. The Illinois statute for theft thus employs

the same two elements we used to define the generic term

“theft offense” for immigration purposes: exercise of

control over property without the owner’s consent; and

the intent to deprive the owner permanently or temporarily of the use and enjoyment of that property. Similarly,

we have defined “attempt” for the purposes of the INA

as the intent to commit a crime combined with a substantial step towards its commission. Martinez-Garcia, 268

F.3d at 465-66. Using these formulations of “attempt” and

“theft,” we concluded in Martinez-Garcia that a defendant

charged under Illinois law with burglary to a motor vehicle

with intent to commit the offense of theft therein had

committed the aggravated felony of an attempted theft

offense for the purposes of 8 U.S.C. § 1326(b)(2), 8 U.S.C.

§ 1101(a)(43) and U.S.S.G. § 2L1.2(b)(1)(A). 268 F.3d at

466. That is, the entry into the motor vehicle sufficed as

a “substantial step” toward the commission of the

intended theft. Martinez-Garcia had been charged

under the same Illinois statute at issue here, in virtually

identical language:

[T]he defendant, without authority, knowingly entered

a motor vehicle of Silvens Matthews, a 1979 Chevy

pick-up, with the intent to commit therein a theft.

268 F.3d at 462. Like Vaca-Tellez, he pled guilty and

initially was sentenced to probation. And like Vaca-Tellez,
No. 07-2397 9

he violated the terms of his probation and was sentenced

to three years’ imprisonment when his probation was

revoked.

In support of its claim that Vaca-Tellez is an aggravated

felon, the government submitted a certified copy of the

information charging Vaca-Tellez with burglary of a motor

vehicle with the intent to commit the offense of theft

therein. The government also provided the IJ with a

“Certified Statement of Conviction/Disposition” (“Certified

Statement”) from the Clerk of the Court in which VacaTellez was convicted. The Certified Statement begins with

the filing of the information and tracks the matter through

the dismissal of a post-conviction petition. The entries on

the Certified Statement are very brief descriptions of what

happened on any given day in the case. For example, there

are more than a dozen entries for August 6, 2002, each

revealing a small piece of the progress of the case, such as

“defendant in custody,” “public defender appointed,”

“plea of not guilty,” followed quickly by “plea of guilty,”

and “finding of guilty.” Given that there was only one

charge pending at the time Vaca-Tellez pled guilty, this

evidence (the information and the Certified Statement

combined) was sufficient as a matter of law for the IJ to

conclude that Vaca-Tellez had been convicted of burglary

to a motor vehicle with the intent to commit a theft

therein. See 8 U.S.C. § 1229a(c)(3)(B) (listing documents or

records that constitute proof of a criminal conviction).

Vaca-Tellez complains that without a transcript of the plea

hearing, we cannot know what conduct the plea involved.

That argument is a non-starter, however, because the

documents demonstrated that, at a minimum, Vaca-Tellez

had committed the conduct charged in the information.
10 No. 07-2397

Vaca-Tellez next asserts that the BIA did not distinguish

between the generic definitions of theft and burglary in

assessing the nature of his conviction. According to VacaTellez, the BIA used the words “burglary” and “theft”

interchangeably, without conducting a categorical analysis

of Vaca-Tellez’s offense of conviction. Under Illinois law,

a “person commits burglary when without authority he

knowingly enters or without authority remains within a

building, housetrailer, watercraft, aircraft, motor vehicle

as defined in The Illinois Vehicle Code, railroad car, or

any part thereof, with intent to commit therein a felony

or theft.” 720 ILCS 5/19-1(a). We held in Solarzano-Patlan

that the Illinois crime of burglary to an automobile with

intent to commit theft therein is not “burglary” in the

generic sense contemplated by the immigration laws

because it does not encompass the unlawful entry into, or

remaining in, a building or structure. Solorzano-Patlan, 207

F.3d at 874. See also Hernandez-Mancilla, 246 F.3d at 1005

(noting that Solorzano-Patlan held that a conviction under

720 ILCS 5/19-1 for burglary of a motor vehicle is not a

“burglary offense” under § 1101(a)(43)(G) and thus

cannot be an aggravated felony on that basis). We also

held that burglary to a motor vehicle was not necessarily

a “crime of violence” under 8 U.S.C. §1101(a)(43)(F). The

INA defines a crime of violence, in relevant part, as an

“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.” Solorzano-Patlan, 207 F.3d at 875; 18

U.S.C. § 16(b). Because Illinois defined the crime so broadly

that it encompasses conduct that does not involve a
No. 07-2397 11

substantial risk of physical force, we remanded so that

the IJ could review the charging papers to determine

whether Solorzano-Patlan’s conduct involved a substantial risk of physical force.

There is no similar problem here. Contrary to VacaTellez’s argument, the BIA did not treat “burglary” and

“theft” as interchangeable terms but rather relied on our

decision in Martinez-Garcia to conclude that the Illinois

crime of burglary to a motor vehicle with intent to

commit theft therein meets the generic definition of

attempted theft offense under the INA. Vaca-Tellez

complains that he was never charged with, or convicted

of, attempted theft. It is true that Illinois does not label

the crime Vaca-Tellez committed an “attempted theft” but

the labels that individual states apply to crimes are irrelevant to our analysis under federal law. See Taylor v. United

States, 495 U.S. 575, 592 (1990) (finding that the term

“burglary” in the Career Criminal statute “must have

some uniform definition independent of the labels employed by the various States’ criminal codes.”). Our

concern is not the labels but whether the elements of the

crime as defined by state law meet the elements of a

generic definition of an applicable aggravated felony,

such as a theft offense. Eke, 512 F.3d at 378-79; MartinezGarcia, 268 F.3d at 465 (in determining the meaning of

“attempt” under Subsection U, we must apply a generic

definition of attempt that is unconstrained by the titles,

definitions, or elements assigned to it by the various
12 No. 07-2397

Vaca-Tellez also asserts that the “intent to commit theft” was 3

simply a statement of the intent needed to demonstrate that he

did not enter the motor vehicle lawfully; the aim of that part of

the charge, he alleges, is to exclude lawful purposes and meet

the requirement of the burglary statute that the entry be

“without authority.” But that analysis would render part of

the statute meaningless because the law requires both that the

entry be “without authority” and that it be “with intent to

commit therein a felony or theft.”

States). See also Lopez v. Gonzales, 127 S.Ct. 625, 633 (2006)

3

(holding that a state offense constitutes a “felony punishable under the Controlled Substances Act” only if it

proscribes conduct punishable as a felony under that

federal law).

Vaca-Tellez next argues that the BIA misinterpreted

the meaning of “attempt” as defined in 8 U.S.C.

§ 1101(A)(43)(U). He argues that he was not charged with

attempted burglary. Of course, the BIA did not find that

he committed attempted burglary. Rather, the BIA determined that the Illinois crime of burglary to a motor

vehicle with intent to commit a theft therein met the

elements of a generic attempted theft offense. As we

noted in Martinez-Garcia, we are bound to apply a generic

definition of that term, unconstrained by the titles, elements and definitions applied to it by the various states.

Martinez-Garcia, 268 F.3d at 465. We adopted the

Second Circuit’s generic definition of attempt as (1) the

intent to commit a crime; and (2) a substantial step towards

its commission. Martinez-Garcia, 268 F.3d at 465-66; Sui v.

INS, 250 F.3d 105, 115 (2d Cir. 2001). Vaca-Tellez pled
No. 07-2397 13

guilty to a charge that he knowingly and without

authority entered into a car with the intent to commit a

theft in the car. He satisfied the first part of the attempt

formulation by admitting he intended to commit a crime

(theft). He met the terms of the second part by conceding

that he entered into a motor vehicle without authority,

which we construed in Martinez-Garcia as a substantial

step towards the commission of theft. 268 F.3d at 466. The

only differences between the conviction for Vaca-Tellez

and the conviction for Martinez-Garcia were the models

and owners of the Chevys involved. The charges were

virtually identical. We see no reason to treat the meaning

of “attempted theft offense” differently in the immigration

context than in the sentencing context, and we are therefore bound by the holding of Martinez-Garcia. See United

States v. Matamoros-Modesta, 523 F.3d 260, 264-65 (4th Cir.

2008) (finding that the term “aggravated felony” holds

the same meaning in the criminal sentencing context as it

does in the immigration setting); United States v. FigueroaOcampo, 494 F.3d 1211, 1216 (9th Cir. 2007) (same).

We have considered Vaca-Tellez’s remaining arguments

and find that they are without merit. The petition for

review is therefore 

DENIED.

9-2-08