Flores-Abarca v. Barr, No. 17-60236

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: STEPHEN A. HIGGINSON, Circuit Judge
• Citation: 937 F.3d 473
• Parties: Rogelio FLORES-ABARCA, Petitioner v. William P. BARR, U. S. Attorney General, Respondent
• Docket Number: No. 17-60236
• Decision Date: 28 August 2019

937 F.3d 473

Rogelio FLORES-ABARCA, Petitioner
v.
William P. BARR, U. S. Attorney General, Respondent

No. 17-60236

United States Court of Appeals, Fifth Circuit.

FILED August 28, 2019

Arthur Campbell Cooke, Esq., Law Office of Campbell Cooke, Tulsa, OK, for Petitioner.

Erica Miles, Senior Litigation Counsel, Kate Deboer Balaban, Esq., Trial Attorney, U.S. Department of Justice, Civil Division/OIL, Office of Immigration Litigation, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Upon sua sponte panel rehearing, we withdraw our prior opinion, Flores-Abarca v. Barr , ––– F.3d ––––, No. 17-60236, 2019 WL 3852624 (5th Cir. 2019), and substitute the following:

Rogelio Flores Abarca seeks review of a Board of Immigration Appeals (BIA) decision holding that he is statutorily ineligible for cancellation of removal because of a 2004 firearm transportation conviction. We first conclude that Flores Abarca failed to exhaust his challenge to the immigration court’s jurisdiction based on alleged defects in his Notice to Appear. On the merits, we hold that the Oklahoma misdemeanor of transporting a loaded firearm in a motor vehicle is not one of the firearms offenses listed under 8 U.S.C. § 1227(a)(2)(C). Accordingly, this conviction does not disqualify Flores Abarca from seeking cancellation of removal. We grant the petition for review, vacate the BIA’s order, and remand for further proceedings.

I.

Flores Abarca is a native and citizen of Mexico. He entered the United States unlawfully in 1988, when he was five years old. He currently lives in Oklahoma and has four U.S. citizen children. In January 2004, Flores Abarca pleaded guilty to the Oklahoma misdemeanor offense of transporting

937 F.3d 477

a loaded firearm in a motor vehicle. See OKLA. STAT. tit. 21 § 1289.13. In May 2015, the Department of Homeland Security initiated removal proceedings against Flores Abarca, alleging that he was present in the United States without having been admitted or paroled. The Notice to Appear was personally served on Flores Abarca and instructed him to appear before an immigration judge in Dallas at a date and time to be set. Flores Abarca later received a notice of hearing with a specific date and time, and he personally appeared in Dallas immigration court on October 19, 2015. At this hearing, Flores Abarca acknowledged receipt of the Notice to Appear, conceded his removability, and stated that he wished to seek cancellation of removal.

Cancellation of removal is a form of relief available to certain otherwise removable aliens. See 8 U.S.C. § 1229b. To be eligible for this relief, a nonpermanent resident such as Flores Abarca must (1) have been continuously physically present in the United States for at least 10 years; (2) demonstrate good moral character during this period; (3) not be convicted of an offense under 8 U.S.C. § 1182(a)(2), § 1227(a)(2), or § 1227(a)(3) ; and (4) "establish[ ] that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." 8 U.S.C. § 1229b(b)(1).

Flores Abarca requested cancellation of removal based on hardship to his four young children and his ailing lawful permanent resident parents. The immigration judge asked for the government’s views regarding Flores Abarca’s eligibility in light of his firearm transportation conviction. The government stated that it believed Flores Abarca was eligible for cancellation of removal, and that it did not believe that his firearm transportation conviction fell under the statute’s firearms provision. The immigration judge nonetheless expressed concern about this conviction and ordered further briefing on the issue. In its brief, the government revised its original position and argued that Flores Abarca is ineligible for cancellation of removal because of his firearm transportation conviction.

After considering the parties’ briefs, the immigration judge held that Flores Abarca’s conviction for transporting a loaded firearm is a firearms offense described under 8 U.S.C. § 1227(a)(2)(C) and renders him ineligible for cancellation of removal as a matter of law. Flores Abarca appealed his order of removal to the BIA. On March 3, 2017, the BIA affirmed the immigration court in a published and precedential opinion. See Matter of Flores-Abarca , 26 I & N Dec. 922 (B.I.A. 2017). Flores Abarca timely moved for reconsideration. While his motion for reconsideration was pending, Flores Abarca filed a motion to remand to the immigration court to permit him to apply for adjustment of status. The BIA denied both motions. Flores Abarca now petitions for review of the BIA’s decisions.

II.

For the first time on appeal, Flores Abarca seeks to challenge alleged defects in his Notice to Appear (NTA). This court generally lacks jurisdiction to consider issues that were not first presented to the BIA. See Omari v. Holder , 562 F.3d 314, 318–19 (5th Cir. 2009) ; see also 8 U.S.C. § 1252(d) ("A court may review a final order of removal only if – (1) the alien has exhausted all administrative remedies available to the alien as of right"). Flores Abarca nonetheless contends that he can raise this issue at any time because defects in the NTA undermine the immigration court’s subject matter jurisdiction. This argument

937 F.3d 478

is foreclosed by our precedent. See Pierre-Paul v. Barr , 930 F.3d 684, 693 (5th Cir. 2019) (holding that 8 C.F.R. § 1003.14 is a non-jurisdictional claim processing rule, defects in which are waivable). Because Flores Abarca did not properly exhaust this issue, we lack jurisdiction to consider it. We therefore turn to the merits.

III.

The BIA held that Flores Abarca is ineligible for cancellation of removal as a matter of law because "the crime of transporting a loaded firearm under Oklahoma law is categorically a firearms offense under" 8 U.S.C. § 1227(a)(2)(C). Flores-Abarca , 26 I & N Dec. at 924. Because the BIA reached an independent legal conclusion on this question, "our review is confined to the BIA’s analysis and reasoning." Enriquez-Gutierrez v. Holder , 612 F.3d 400, 407 (5th Cir. 2010). With limited exceptions, we may "only affirm the BIA on the basis of its stated rationale for ordering an alien removed from the United States." Id. The sole issue before us is therefore the purely legal question of whether Flores Abarca’s Oklahoma firearm transportation conviction is categorically a disqualifying firearms offense under § 1227(a)(2)(C). We have jurisdiction to consider this legal issue. See 8 U.S.C. § 1252(a)(2)(D).

A.

We first review the relevant statutory framework. A nonpermanent resident does not qualify for cancellation of removal if he has "been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)" of Title 8 of the U.S. Code. 8 U.S.C. § 1229b(b)(1)(C). The specific provision at issue in this case is § 1227(a)(2)(C), which renders deportable "[a]ny alien who at any time after admission is convicted" of certain firearms offenses. As a threshold matter, Flores Abarca contends that § 1227(a)(2)(C) does not apply to him because he was never admitted to the United States.¹

This argument is foreclosed by our precedent. Flores Abarca was not charged with being removable under § 1227(a)(2)(C). This provision is relevant to this case only because it is cross-referenced in the cancellation of removal statute. See § 1229b(b)(1)(C). We have held that this statutory cross-reference simply "identif[ies] the kinds of offenses that will make an alien ineligible for cancellation of removal." Nino v. Holder , 690 F.3d 691, 697 (5th Cir. 2012) (emphasis added). "For purposes of that ineligibility, it does not matter when the offense occurred in relation to the alien’s admission." Id. at 697–98 ; see also Aleman v. Holder , 541 F. App'x 457, 459 (5th Cir. 2013) (" Nino v. Holder held the plain language of § 1229b(b)(1)(C) unambiguously refers to the elements of the offenses set forth in the three statutes and does not refer to any aspects of immigration law.").

Flores Abarca is therefore ineligible for cancellation of removal if he was convicted of an offense listed in § 1227(a)(2)(C), regardless of whether he had been admitted to the United States at the time of conviction. This provision reads in full:

(C) Certain firearm offenses

Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or

937 F.3d 479

carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of Title 18) in violation of any law is deportable.

8 U.S.C. § 1227(a)(2)(C).

The list of offenses in the statute does not include a conviction for "transporting" a firearm in violation of any law.

The BIA reasoned, however, that "[a] plain reading of the statute makes ‘clear that Congress intended...