Monday, July 21, 2008

Panel Calls for En Banc Reconsideration of Whether Unauthorized Use of a Vehicle is an Aggravated Felony

Serna-Guerra v. Mukasey, No. 07-60634 (5th Cir. May 30, 2008) (unpublished) (per curiam) (Jolly, Dennis, Prado)

Remember that circuit split over whether unauthorized use of a vehicle is an aggravated felony? To briefly recap, the Fifth Circuit holds that it is, relying on reasoning rejected by the Supreme Court in Leocal v. Ashcroft. The Tenth Circuit, hewing to Leocal, holds otherwise.

Turns out we may see some movement on this issue. A few weeks ago a Fifth Circuit panel issued an unpublished opinion in Serna-Guerra v. Mukasey "agree[ing] with the Tenth Circuit that it defies common sense to treat [those convicted of UUV] in the same manner as convicted murderers, rapists, robbers, or burglars for deportation purposes[,]" and "urg[ing] and recommend[ing] that" Galvan-Rodriguez and Brieva-Perez "should be reconsidered and overruled by our en banc court." And a glance at the docket shows that Serna has indeed petitioned for en banc review. All the more reason to keep preserving this issue in your illegal reentry cases.

(It appears that only two judges on the panel are beating the en banc drum, as a footnote explains that "Judge Jolly concurs only in the order granting the motion for summary affirmance and denying as moot the alternative motion for an extension of time to file a responsive pleading.")

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