518 F.3d 497 (7th Cir. 2008), 06-1931, Negrete-Rodriguez v. Mukasey

Docket Nº:06-1931, 06-2938.
Citation:518 F.3d 497
Party Name:Pablo NEGRETE-RODRIGUEZ, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
Case Date:March 03, 2008
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 497

518 F.3d 497 (7th Cir. 2008)

Pablo NEGRETE-RODRIGUEZ, Petitioner,

v.

Michael B. MUKASEY, Attorney General of the United States, Respondent.

Nos. 06-1931, 06-2938.

United States Court of Appeals, Seventh Circuit.

March 3, 2008

         Argued October 30, 2007.

         Petitions for Review of Decisions of the Board of Immigration Appeals. No. A14-475-771.

Page 498

         Maria T. Baldini-Potermin, Gostynska Frakt, Chicago, IL, for Petitioner.

         Richard Zanfardino, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

         Before MANION, ROVNER, and SYKES, Circuit Judges.

         MANION, Circuit Judge.

         Pablo Negrete-Rodriguez ("Negrete") is a Mexican citizen. He was admitted to the United States as a lawful permanent resident in 1965. Later, Negrete was convicted of several crimes in Illinois, including possession of a firearm by a felon. Removal proceedings were instituted against him in 2001. After a hearing, the Immigration Judge ("IJ") determined, among other things, that Negrete's Illinois firearms conviction was an aggravated felony, thus barring Negrete from eligibility for cancellation of removal, and ordered Negrete removed to Mexico. The Board of Immigration Appeals ("Board") affirmed the IJ's decision and denied Negrete's motion to reconsider. Because we conclude that the Board properly categorized Negrete's Illinois felon-in-possession conviction as an aggravated felony, we deny Negrete's petitions for review.

         I.

         Negrete entered the United States as a lawful permanent resident on September 28, 1965, at the age of four. While in the United States, Negrete compiled an extensive record of criminal arrests and convictions beginning in the early 1980's and ending in the middle of the next decade. All of Negrete's arrests and convictions took place in Illinois. In 1981, Negrete was arrested four times, including once for disorderly conduct, another time for unlawful use of a weapon, and yet another time for theft. In 1982, Negrete was arrested and convicted of robbery; in 1984, he was arrested for battery. Negrete was arrested and convicted again in April 1986, this time for possession of a controlled substance. He was also arrested in August 1986 for driving under the influence, leaving the scene of an accident and failing to report it, failing to have a valid driver's license, and driving in the wrong lane. Negrete added two more arrests to his record for driving under the influence, once in 1993 and again in 1995, as well as an arrest for drinking in public in 1994. In 1990, Negrete was arrested for aggravated assault. Most pertinent to this opinion, however, is Negrete's 1990 conviction

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for unlawful possession of a weapon by a felon in violation of 720 ILCS 5/24-1.1(a).1

         In 2001, Negrete left the United States to visit Mexico. Upon his return, the Department of Homeland Security ("DHS") 2 initiated removal proceedings against Negrete, charging him in the Notice to Appear ("Notice") as an arriving alien who was subject to removal based on §§ 212(a)(2)(A)(i)(I)-(II) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. §§ 1182(a)(2)(A)(i)(I)-(II), for crimes involving moral turpitude and a controlled substance. The Notice listed Negrete's 1982 conviction for robbery, his 1986 conviction for possession of a controlled substance, and his 1990 conviction for unlawful possession of a weapon by a felon. At Negrete's first appearance in immigration court on September 5, 2002, DHS noted that the Notice would have to be amended, as it incorrectly listed Negrete as an arriving alien instead of a lawful permanent resident, and also requested a continuance. The IJ granted DHS's request without objection from Negrete and continued Negrete's hearing until January 9, 2003.

         The hearing was continued several more times after the January 9, 2003, date. In the interim, the government supplemented the Notice to reflect Negrete's status as a lawful permanent resident rather than an arriving alien. In addition, the government revised its charges, alleging, among other things, that Negrete was removable under § 237(a)(2)(A)(iii) of the INA, codified at 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of two aggravated felonies, the first an offense involving a controlled substance as defined in § 101(a)(43)(B) of the INA, codified at 8 U.S.C. § 1101(a)(43)(B); and the second a firearms-related offense as defined in § 101(a)(43)(E)(ii) of the INA, codified at 8 U.S.C. § 1101(a)(43)(E)(ii). While the government was amending its charges, Negrete filed an application for a waiver under the former § 212(c) of the INA3 and applied for cancellation of removal as well.

         On February 7, 2005, the IJ held a hearing and found, among other things, that DHS had proved the two aggravated-felony grounds for removal by clear and convincing evidence. Relying on the Board's finding in In re Yanez-Garcia, 23 I&N Dec. 390 (BIA 2002), the IJ rejected Negrete's argument that his 1987 possession of a controlled substance should not have been classified as an aggravated felony. The IJ also rejected Negrete's argument that his firearms conviction did not

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amount to an aggravated felony. In rejecting the latter argument, the IJ discussed In re Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002) ("Vasquez-Muniz II"), wherein the Board reversed its two-year-old ruling in In re Vasquez-Muniz, 22 I&N Dec. 1415 (BIA 2000) ("Vasquez-Muniz I"). In Vasquez-Muniz I, the Board had held that a state law conviction for possession of a firearm by a felon did not count as an aggravated felony for immigration purposes if the state offense did not require an effect on interstate or foreign commerce. Based on In re Yanez-Garcia and Vasquez-Muniz II, the IJ further determined that Negrete had no valid form of relief from removal available to him, and therefore ordered that Negrete be removed to Mexico.

         Negrete appealed to the Board. In a decision dated March 9, 2006, the Board affirmed the IJ's ruling and dismissed Negrete's appeal. Negrete filed a motion to reconsider, arguing that his removability was affected by this court's decision in Gonzales-Gomez v. Achim, 441 F.3d 532 (7th Cir. 2006), wherein we held that a drug offense that was classified as a felony under state law, but only a misdemeanor under the Controlled Substances Act, did not constitute an aggravated felony under the INA. The Board agreed that, under Gonzales-Gomez,...

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