PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                     No. 15-1160
                    _____________

        WILSON EMILIO PEGUERO MATEO,
                               Petitioner

                           v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,
                             Respondent
              _____________

        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
                    ______________

                 Argued April 28, 2016
                   ______________

Before: McKEE, JORDAN, and VANASKIE, Circuit Judges.

           (Opinion Filed: September 6, 2017)


Tracey M. Hubbard, Esq. (ARGUED)
Bank Towers Building
321 Spruce Street
Suite 509
1500 Liberty Center
Scranton, PA 18503

      Counsel for Petitioner

Matthew A. Connelly, Esq. (ARGUED)
Thomas. W. Hussey, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

      Counsel for Respondent

                        ___________

                        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, 

(2015), and our
decision in Baptiste v. Attorney General, 

, 621 (3d




                               2
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




                                 3
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

       1
          Though not relevant to this case, the DHS also
charged that Mateo was removable as an alien convicted of a
crime involving moral turpitude pursuant to 8 U.S.C. §
1227(a)(2)(A). Specifically, the DHS stated that Mateo was
subject to removal because his conviction also constituted a
crime involving moral turpitude, pursuant to 8 U.S.C. §
1227(a)(2)(A)(i), because it was a crime of theft, as defined in
8 US.C. § 1101(a)(43)(G); and a crime of attempt or conspiracy
to commit an aggravated felony, as defined in 8 U.S.C. §
1101(a)(43)(U).




                               4
                     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 IJ’s decision and Mateo’s appeal
was dismissed. This Petition for Review ensued.

        On appeal before this Court, Mateo initially argued that
the BIA improperly determined, as a matter of law, that
Robbery of a Motor Vehicle is a “crime of violence” under §
16(b), as incorporated into the INA. Accordingly, he requested
that, per this Court’s opinion in Aguilar v. Attorney General of
the United States, 

(3d Cir. 2011), we find that the
Robbery of a Motor Vehicle statute is “overly broad” and that,
using the categorical approach, his conviction under the statute

       2
        The IJ dismissed the other charges with respect to
crimes of theft because Mateo was only convicted of a
conspiracy to commit Robbery of a Motor Vehicle; not the
underlying offense itself. The IJ did not address the charge
based on a conviction for a crime involving moral turpitude.




                               5
was not a crime of violence under the INA. The case was
initially submitted on the briefs without argument.

         Just before the case was submitted, however, the
Government filed a letter pursuant to Federal Rule of Appellate
Procedure 28(j) informing the Court that the Ninth Circuit, in
Dimaya v. Lynch, 

(2015), held that § 16(b), as
incorporated into the INA, is unconstitutionally vague in light
of the Supreme Court’s decision in Johnson v. United States,

(2015). Mateo then sent his own Rule 28(j)
letter, arguing we should also find that § 16(b), as incorporated
into the INA, is unconstitutionally vague. Thereafter, we
ordered supplemental briefing and oral argument addressing
whether the vagueness standard should be applied in the
immigration context and, if so, whether § 16(b), as
incorporated into the INA, is unconstitutionally vague given
the Supreme Court’s decision in Johnson.

       Pending in our own Court at the time we heard oral
argument in this matter was a petition for review in another
deportation case, Baptiste v. Attorney General, No. 14-4476,
which also presented the question of whether the definition of
“crime of violence” in 18 U.S.C. § 16(b) is void for vagueness.
We deferred reaching a decision in this matter pending a ruling
in Baptiste. Separately, on September 29, 2016, certiorari was
granted in Dimaya. 3 In light of this development, we opted to
hold this matter C.A.V. 4


       3
           Cert. granted, 

(U.S. Sept. 29, 2016).
       4
        C.A.V. is the abbreviation for the Latin legal phrase,
curia advisari vult, meaning “the court will be advised, will




                                 6
       Dimaya was argued before the Supreme Court on
January 17, 2017, and a ruling was expected by the end of June,
2017. Then, on June 26, 2017, the Court ordered that Dimaya
be re-argued during the Court’s October 2017 term. Given the
further delay and the fact that this proceeding has been pending
for a considerable period of time, we have chosen to decide
Mateo’s petition for review. In doing so, we must now follow
our precedential holding in Baptiste, which on November 8,
2016, held that 18 U.S.C. § 16(b) is unconstitutionally vague
when applied in a removal proceeding. 5 

, 621 (3d
Cir. 2016).

                           II.

        The IJ had jurisdiction over Mateo’s removal
proceeding pursuant to 8 U.S.C. § 1229a. The BIA had
jurisdiction to consider Mateo’s appeal pursuant to 8 C.F.R. §
1003.1(b)(3). Pursuant to 8 U.S.C. § 1252(a), we have
jurisdiction to consider “‘questions of law raised upon a

consider, will deliberate.” In re Mystic Tank Lines Corp., 

, 526 n.1 (3d Cir. 2008). It is the term we use when
we hold an appeal in abeyance pending the outcome of another
proceeding.
       5
         Baptiste was not held C.A.V. pending the Court’s
ruling in Dimaya because the petitioner had also been found
removable for having committed a crime involving moral
turpitude, and thus was removable pursuant to 8 U.S.C. §
1227(a)(2)(A)(ii). While the petitioner in Baptiste prevailed
on the crime of violence issue, he ultimately lost on the crime
involving moral turpitude issue and his petition for review was

.




                                 7
petition for review,’ including petitions for review of removal
orders based on aggravated felony convictions.” Tran v.
Gonzales, 

, 467 (3d Cir. 2005) (quoting 8 U.S.C.
§ 1252(a)(2)(D)). “Since the interpretation of criminal
provisions ‘is a task outside the BIA’s special competence and
congressional delegation . . . [and] very much a part of this
Court’s competence,’ our review is de novo.” 

(quoting 

).

                          III.

        This appeal turns on the two questions we posed to the
parties for supplemental briefing: (1) whether the
constitutional vagueness standard should be applied in the
civil/immigration context and, if so, (2) whether § 16(b), as
incorporated into the INA, is unconstitutionally vague given
the Supreme Court’s decision in Johnson. The second question
has been answered in the affirmative by Baptiste, and we are
bound by that holding. 6 We now answer the first question in
the affirmative as well.

                           A.

      The Supreme Court has explained that the “‘void for
vagueness’ doctrine [is] applicable to civil as well as criminal


       6
         Third Circuit Internal Operating Procedure 9.1 states
that the holding of a panel in a precedential opinion is binding
on subsequent panels. Court en banc consideration is required
to overrule such a holding. See United States v. Brownlee, 

, 149 (3d Cir. 2006).




                                 8
actions.” Boutilier v. INS, 

, 123 (1967) (citation
omitted). In San Filippo v. Bongiovanni, this Court noted that
“[l]esser degrees of specificity are required to overcome a
vagueness challenge in the civil context than in the criminal
context . . . because the consequences in the criminal context
are more severe.” 

, 1135 (3d Cir. 1992) (citing
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

, 498–99 (1982)). Because the consequences of
deportation are likewise severe, we take this opportunity to
clarify that the vagueness doctrine should be applied in the civil
immigration context just as it is applied in the criminal context,
and that lesser degrees of specificity are not sufficient to
overcome a vagueness challenge.

        Indeed, the Supreme Court invoked the vagueness
doctrine in the immigration context in Jordan v. De George
precisely because of the severity of deportation. 

,
231 (1951) (“Despite the fact that this is not a criminal statute,
we shall nevertheless examine the application of the vagueness
doctrine to this case. We do this in view of the grave nature of
deportation.”). After the Supreme Court’s decision in Jordan,
the Court has since made it clear that “[i]t is well established
that the Fifth Amendment entitles aliens to due process of law
in deportation proceedings.” Reno v. Flores, 

, 306
(1993) (citing Kaoru Yamataya v. Fisher, 

, 100–01
(1903)). And as Justice Thomas explained in Johnson, the
Supreme Court has “become accustomed to using the Due
Process Clauses to invalidate laws on the ground of
‘vagueness,’” as the doctrine “is quite sweeping” where a
statute “‘authorizes or even encourages arbitrary and
discriminatory 

(Thomas, J.,
concurring in judgment) (quoting Hill v. Colorado, 

, 732 (2000)).




                                9
        Moreover, it is “‘difficult’ to divorce the penalty from
the conviction in the deportation context.” Padilla v.
Kentucky, 

, 365 (2010) (citations omitted).
Accordingly, we hold that the vagueness doctrine may be used
in the immigration context to challenge the INA’s definition of
a crime of violence. Cf. 

–13; Shuti
v. Lynch, 

, 445 (6th Cir. 2016) (“The criminal
versus civil distinction is . . . ‘ill suited’ to evaluating a
vagueness challenge regarding the ‘specific risk of
deportation.’” (citing 

–66)).

       The Government nonetheless maintains that the
vagueness doctrine should not be applied in the immigration
context. Specifically, even though the Supreme Court invoked
the vagueness doctrine in the immigration context in Jordan,
the Government contends that the Supreme Court “did not
squarely decide the extent to which the vagueness doctrine
applies to the immigration laws.” United States’ Suppl. Letter
Br. at 1 n.2. To make this point, the Government notes that
other Supreme Court cases after Jordan have declined to
extend Fifth Amendment limitations in some immigration
contexts. See 

v. Press, 

, 530–
31 (1954); Harisiades v. Shaughnessy, 

, 588–91
(1952); Marcello v. Bonds, 

, 314 (1955)). The
Government’s concerns with respect to the application of the
vagueness doctrine in the context of the deportation sanction,
however, are misguided.

       The Government’s concerns fail to account for the
central tenet of the vagueness doctrine: in this case, affording
aliens “fair notice” of the possibility of removal to ensure the
“even-handed administration of the law.” Papachristou v. City
of Jacksonville, 

, 171 (1972). After all, the
Supreme Court has explained that “accurate legal advice for




                              10
noncitizens accused of crimes has never been more important”
because, “as a matter of federal law, deportation is an integral
part—indeed, sometimes the most important part—of the
penalty that may be imposed on noncitizen defendants who
plead guilty to specified crimes.” 

(footnote omitted). And even more recently, the Court has
further stressed the need for “efficiency, fairness, and
predictability in the administration of immigration law” in
order to “enable[] aliens ‘to anticipate the immigration
consequences of guilty pleas in criminal court,’ and to enter
‘safe harbor’ guilty pleas [that] do not expose the [alien
defendant] to the risk of immigration sanctions.” Mellouli v.
Lynch, 

, 1987 (2015) (citations omitted).

        Any semblance of predictability and fairness would be
frustrated if we were to find that the crime of violence language
in § 16(b) is subject to vagueness challenges outside of the
immigration context, yet the same language is not subject to
vagueness challenges when incorporated into an immigration
statute. Cf. Demore v. Kim, 

, 523 (2003)
(explaining that it “is well established that the Fifth
Amendment entitles aliens to due process of law in deportation
proceedings”) (internal quotation marks omitted); A.B. Small
Co. v. Am. Sugar Ref. Co., 

, 239 (1925) (“The
ground or principle of the [vagueness] decisions was not such
as to be applicable only to criminal prosecutions.”).
Accordingly, for the sake of predictability and fairness, we find
that aliens should get fair notice of the possibility of removal
based upon a conviction that the Government contends is for a
crime of violence.




                               11
                            B.

        Because we find that the vagueness doctrine may be
used in the immigration context to challenge the INA’s
definition of a crime of violence, we must now determine
whether § 16(b) is “so vague that it fails to give ordinary people
fair notice of the conduct it punishes, or so standardless that it
invites arbitrary enforcement.” Johnson, 

(citation omitted). As noted above, we are bound by our
precedential decision in Baptiste, which held that § 16(b) as
applied in the immigration context is unconstitutionally vague
and therefore invalid in light of 

–21.

                                 1.

       In Johnson, the Supreme Court examined whether the
residual clause of the Armed Career Criminal Act (“ACCA”)
was unconstitutionally vague. Where certain defendants have
three or more prior convictions for a “violent felony,” the
ACCA provides a sentence enhancement. 

. “Violent felony” is defined as a crime that is
“burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential
risk of physical injury.” 18 U.S.C. § 924(e)(2)(B)(ii). The
portion pertaining to a crime that “otherwise involves conduct
that presents a serious potential risk of physical injury” is
known as the residual clause.

       Prior to Johnson, the ACCA required courts to use the
categorical approach when deciding whether an offense fell
within the residual clause. “Under the categorical approach, a
court assesses whether a crime qualifies as a violent felony ‘in
terms of how the law defines the offense and not in terms of
how an individual offender might have committed it on a




                                 12
particular occasion.’” 

(quoting
Begay v. United States, 

, 141 (2008)). Thus,
determining “whether the residual clause covers a crime []
require[d] a court to picture the kind of conduct that the crime
involves in ‘the ordinary case,’ and to judge whether that
abstraction presents a serious potential risk of physical injury.”

v. United States, 

, 194 (2007)).

        The Supreme Court found that “[t]wo features of the
residual clause conspire to make it unconstitutionally vague”:
the ordinary case inquiry and the serious potential risk inquiry.

–58; 

. The
ordinary case inquiry, explained above, raised “grave
uncertainty about how to estimate the risk posed by a crime.”

Application of the categorical approach required
the courts to conceptualize what the ordinary case of a crime
might look like—which might involve many varying
iterations—and the “residual clause offers no reliable way to
choose between these competing accounts of what an
‘ordinary’ [crime] involves.” 

The serious potential
risk inquiry was also troublesome because “the residual clause
leaves uncertainty about how much risk it takes for a crime to
qualify as a violent felony.” 

concluded that
“[b]y combining indeterminacy about how to measure the risk
posed by a crime with indeterminacy about how much risk it
takes for the crime to qualify as a violent felony, the residual
clause produces more unpredictability and arbitrariness than
the Due Process Clause tolerates.” 

petitioner in Baptiste, like Mateo, faced removal on
the basis of his purported status as an alien convicted of a crime
of violence under § 16(b). As stated previously, § 16(b)




                               13
defines a crime of violence as “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.” In order to
determine whether the crime of conviction is a crime of
violence under § 16(b), courts utilize the same categorical
approach that was applied to the ACCA’s residual clause.

.

       The petitioner in Baptiste argued that the Supreme
Court’s holding in Johnson striking down the residual clause
should apply to negate § 16(b). After comparing the features
of the § 16(b) analysis to those found to contribute to the
unconstitutionality of the residual clause in Johnson, we agreed
that the same defects were present in § 16(b), rendering the
provision unconstitutional. Regarding the first feature, we
recognized that the same “ordinary case inquiry” is used when
applying the categorical approach in both contexts. 

residual clause, § 16(b) “offers no reliable way to choose
between . . . competing accounts of what” that “judge-
imagined abstraction” of the crime involves. 

. Thus, we concluded in Baptiste that “the
ordinary case inquiry is as indeterminate in the § 16(b) context
as it was in the residual clause 

.
Turning to the second feature—the risk inquiry—we observed
that despite slight linguistic differences between the
provisions, the same indeterminacy inherent in the residual
clause was present in § 16(b). 

two inquiries
under the residual clause that the Supreme Court found to be
indeterminate—the ordinary case inquiry and the serious
potential risk inquiry—are materially the same as the inquiries
under § 16(b),” we concluded that “§ 16(b) is




                              14
unconstitutionally vague.” 

This conclusion applies
equally to Mateo’s petition.

       Our treatment of § 16(b) is in step with the Sixth, Ninth,
and Eleventh Circuits, which have all similarly deemed the
provision to be void for vagueness in immigration cases. See

; 

; Golicov v.
Lynch, 

, 1072 (10th Cir. 2016). The Seventh
Circuit has also taken this position in the criminal context. See
United States v. Vivas-Ceja, 

, 723 (7th Cir. 2015).
In fact, the only circuit that has broken stride is the Fifth
Circuit. 7 See United States v. Gonzalez-Longoria, 

, 677 (5th Cir. 2016) (en banc). In the meantime, we await
the Supreme Court’s decision in the appeal of Dimaya.


       7
         We note that the Second, Sixth, Eighth, Eleventh, and
D.C. Circuits have concluded that 18 U.S.C. § 924(c), which
contains language nearly identical to § 16(b), survives
Johnson. See United States v. Hill, 

(2d Cir.
2016); United States v. Taylor, 

, 375–79 (6th Cir.
2016); United States v. Prickett, 

(8th Cir. 2016);
Ovalles v. United States, 

, 1267 (11th Cir. 2017);
United States v. Eshetu, 

, 961 (D.C. Cir. 2017).
But, as the Sixth Circuit recognized in reconciling its holding
in Shuti that § 16(b) is void with its earlier decision in Taylor,
“[u]nlike the ACCA and INA, which require a categorical
approach to stale predicate convictions, 18 U.S.C. § 924(c) is
a criminal offense that requires an ultimate determination of
guilt beyond a reasonable doubt—by a jury, in the same
proceeding.” 

. In short, reasonable
minds can and do differ over how the Supreme Court’s
reasoning in Johnson applies in different contexts.




                               15
                            IV.

        For the reasons discussed herein, we will grant the
Petition for Review, vacate the order of removal, and remand
for further proceedings consistent with this opinion.




                            16