Gil v. Eric H. Holder Jr.

• Decision Date: 22 June 2011
• Docket Number: No. 08–74371.,08–74371.
• Citation: Gil v. Eric H. Holder Jr., 651 F.3d 1000, 11 Cal. Daily Op. Serv. 7636, 2011 Daily Journal D.A.R. 9190 (9th Cir. 2011)
• Parties: Roberto Camacho GIL, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

651 F.3d 1000

11 Cal. Daily Op. Serv. 7636

2011 Daily Journal D.A.R. 9190

Roberto Camacho GIL, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 08–74371.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2011.Filed June 22, 2011.

Maziar Razi, Claribel E. Palacios(argued), Law Offices of Mike Razi, PC, Los Angeles, CA, for petitionerRobert Camacho Gil.Tony West, Assistant Attorney General, Luis E. Perez, Senior Litigation Counsel, Joseph D. Hardy, Trial Attorney, Blair T. O'Connor(argued), Assistant Director, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, D.C., for respondentEric H. Holder Jr., Attorney General.On Petition for Review of an Order of the Board of Immigration Appeals.AgencyNo. A095–697–552.Before: PAMELA ANN RYMER, CONSUELO M. CALLAHAN, and SANDRA S. IKUTA, Circuit Judges.Opinion by Judge CALLAHAN; Partial Concurrence and Partial Dissent by Judge RYMER.

OPINION

CALLAHAN, Circuit Judge:

Roberto Gil challenges a decision of the Board of Immigration Appeals(“BIA”) denying him cancellation of removal and voluntary departure.He asserts that the BIA erred in (1) determining he was ineligible for cancellation of removal because his conviction for carrying a concealed weapon under California Penal Code § 12025(a) did not constitute a removable firearms offense under 8 U.S.C. § 1227(a)(2)(C); and (2) denying him voluntary departure because this denial was based on his criminal conviction under California Penal Code § 12025(a) and that conviction did not render him ineligible for voluntary departure.We reject these arguments and affirm.

I

Gil is a native and citizen of Mexico.He unlawfully entered the United States in November of 1990.On December 10, 2004, Gil pleaded no contest to carrying a weapon concealed within a vehicle in violation of California Penal Code Section 12025(a), a misdemeanor.Two weeks later, Gil was served with a Notice to Appear, alleging that he was removable due to being present in the United States illegally in violation of INA § 212(a)(6)(A)(i),8 U.S.C. § 1182(a)(6)(A)(i).

At a merits hearing on May 22, 2007, an Immigration Judge (“IJ”) found that Gil was statutorily ineligible for cancellation of removal because his conviction under California Penal Code § 12025(a) constituted a firearms offense under 8 U.S.C. § 1227(a)(2)(C).The IJ stated that because of this offense, Gil was “ineligible” for voluntary departure, and also that she was denying voluntary departure “as a matter of discretion because of [Gil's] firearm conviction.”

Gil appealed the IJ's decision to the BIA.On September 18, 2008, the BIA dismissed Gil's appeal and affirmed the IJ's denial of his application for cancellation of removal under 8 U.S.C. § 1229b(b).The BIA also affirmed “the IJ's decision denying [Gil's] application for voluntary departure in the exercise of discretion ... [because][o]n appeal, [Gil] has not come forward with any countervailing equities or favorable factors demonstrating reversible error in the IJ's decision.”Gil timely filed a petition for review with this court.

II

Regarding Gil's first claim, we review the BIA's legal determinations regarding an alien's eligibility for cancellation of removal de novo.Sinotes–Cruz v. Gonzales,468 F.3d 1190, 1194(9th Cir.2006).“Federal courts afford the BIA substantial deference when the BIA interprets a statute that it is charged with administering,”Malilia v. Holder,632 F.3d 598, 602(9th Cir.2011)(internal citations omitted).However, “federal courts owe no deference to the BIA's interpretation of a criminal statute.”Id.(internal citations omitted).

The parties dispute whether we have jurisdiction to consider Gil's second claim.The Illegal Immigration Reform and Immigrant Responsibility Act“abolished [our] authority to review discretionary grants and denials of voluntary departure.”Zazueta–Carrillo v. Ashcroft,322 F.3d 1166, 1170(9th Cir.2003);see8 U.S.C. § 1229c(f).However, we have jurisdiction to review questions of law regarding voluntary departure.Ramadan v. Gonzales,479 F.3d 646, 653(9th Cir.2007).We review such questions de novo.Simeonov v. Ashcroft,371 F.3d 532, 535(9th Cir.2004).

“If the BIA issues a written opinion, it is that opinion which is under review.”Morgan v. Mukasey,529 F.3d 1202, 1206(9th Cir.2008)(internal citation omitted).However, “[t]o the extent the [BIA] incorporates the [IJ's] decision as its own, [we] review both the decisions of the [BIA] and the IJ.”Ahir v. Mukasey,527 F.3d 912, 916(9th Cir.2008)(internal quotation omitted).

III

A nonpermanent resident alien is statutorily ineligible for cancellation of removal if he or she has been convicted of an offense under § 1227(a)(2).8 U.S.C. § 1229b(b)(1)(C).Gil contends that the BIA erred in holding that he was statutorily ineligible for cancellation of removal because California Penal Code § 12025(a) criminalizes more conduct than is covered by the definition of “firearms offense” in 8 U.S.C. § 1227(a)(2)(C), and therefore his conviction under § 12025(a) does not render him ineligible for cancellation of removal under § 1227(a)(2)(C).Under the categorical approach set forth in Taylor v. United States,495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607(1990), we“compare[ ]the statestatute of conviction with the federal generic definition of the same crime.”United States v. Velasquez–Bosque,601 F.3d 955, 957(9th Cir.2010)(citingTaylor,495 U.S. at 602, 110 S.Ct. 2143).Here, the statestatute of conviction, California Penal Code § 12025(a), provides:

(a) A person is guilty of carrying a concealed firearm when he or she does any of the following:

(1) Carries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person.

(2) Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person.

(3) Causes to be carried concealed within any vehicle in which he or she is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person.

Cal.Penal Code § 12025(a).Meanwhile, the federal statute, 8 U.S.C. § 1227(a)(2)(C), provides:

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

Gil contends that § 1227(a)(2)(C) is not broad enough to encompass certain offenses committed under § 12025(a)(3), which criminalizes conduct where a defendant“causes [a concealed firearm] to be carried.”SeeCal.Penal Code § 12025(a).Specifically, Gil notes that a state court has said, in regard to § 12025(a)(3), that “it is theoretically possible for a person to cause to be concealed a firearm that is not in his or her possession, custody, or control, such as by conduct that conceals from view a firearm that is in the possession and control of another person.”People v. Padilla,98 Cal.App.4th 127, 138, 119 Cal.Rptr.2d 457(2002).Based on Padilla, Gil asserts that a person could be convicted under § 12025(a)(3) without having either carried or possessed a firearm.Thus, he argues, the state offense does not categorically fall within § 1227(a)(2)(C).

However, § 1227(a)(2)(C) is not as limited as Gil contends.We have stated that “[f]rom a plain reading of [§ 1227(a)(2)(C) ], it is clear that Congress intended to embrace the entire panoply of firearms offenses.”Valerio–Ochoa v. INS.,241 F.3d 1092, 1095(9th Cir.2001).We further explained that

[§ 1227's] comprehensive list of gerunds captures all varieties of conduct relating to firearms transactions.It includes inchoate as well as completed offenses, enumerating not only the sale, use, ownership, or possession of firearms, but also any attempt or conspiracy to do so.Finally, it encompasses convictions “under any law” of engaging or attempting to engage in such transactions.This wide-ranging text evinces an expansive purpose—to render deportable those aliens that commit firearms offenses of any type.

Id.(quotingHall v. INS,167 F.3d 852, 855(4th Cir.1999)).In other words, the generic offenses listed in § 1227(a)(2)(C)(such as “carrying” or “possessing” a firearm) should be interpreted as broadly as possible, so as to cover “firearms offenses of any type.”See

id.

Indeed, we previously rejected an argument similar to the one Gil makes here.In Malilia v. Holder, an alien argued that his conviction for “improper delivery of a firearm” did not fall within the ambit of § 1227(a)(2)(C) because § 1227(a)(2)(C) does not list “delivery” as a separate offense.632 F.3d at 602.We rejected that argument as relying on an overly narrow reading of the federal statute and reiterated that § 1227(a)(2)(c)'s “repetitive use of unqualified language demonstrates Congress' intent to embrace the panoply of firearms offenses.”Id. at 603(citingValerio–Ochoa,241 F.3d at 1095).Moreover, we reasoned that, construed broadly, possession of a firearm need not mean actual possession, but can include any “exercise of dominion or control,”id. at 603, and delivery of a firearm logically includes some aspect of dominion or control over the firearm.Seeid. at 603–04.

Gil similarly argues that because § 12025(a) uses the phrase “cause to be carried,” it is broader than § 1227(a)(2)(C) because the federal statute criminalizes carrying a firearm and possessing a firearm but does not make it a separate offense to “cause [a firearm] to be carried.”But Malilia states that we should reject an overly narrow reading of the federal statute.Construed broadly,...