In re Madrigal-Calvo
| Decision Date | 23 April 1996 |
| Docket Number | Interim Decision No. 3274.,File A41 260 865. |
| Parties | In re Max Alejandro MADRIGAL-Calvo, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
We have jurisdiction over this timely appeal from the Immigration Judge's June 14, 1995, decision pursuant to 8 C.F.R. § 3.1(b) (1995). The issues on appeal are: (1) whether a transcript of criminal plea and sentence proceedings can properly be considered in evaluating whether the respondent's conviction is a "firearms offense" under section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (1994), and (2) whether the respondent's statutory and regulatory right to counsel was violated. We find that the transcript from the respondent's criminal plea and sentencing hearing is proper evidence, and that his right to counsel was not violated. The appeal will therefore be dismissed.
The Order to Show Cause and Notice of Hearing (Form I-221) issued in this case alleges that the respondent was convicted on July 20, 1992, in the Supreme Court of the State of New York, County of Queens, of the offense of criminal possession of a weapon in the fourth degree, in violation of section 265.01 of the New York State Penal Law. At his deportation hearing, the respondent admitted his alienage and his conviction, but he did not concede deportability.
On appeal, the respondent contends that his conviction was erroneous because he should have been charged with a lesser offense, attempted possession or conspiracy to possess a weapon, which, he argues, would not have rendered him deportable. He also contends that he did not waive his right to counsel and that he was prejudiced by the lack of counsel.1
In pertinent part, section 241(a)(2)(C) of the Act renders deportable "[a]ny alien who at any time after entry is convicted under any law of . . . possessing. . . any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code)."
The respondent was convicted of criminal possession of a weapon in the fourth degree, in violation of section 265.01 of the New York Penal Law. That statute provides in pertinent part that a person is guilty of criminal possession in the fourth degree when:
(1) He possesses any firearm, electronic dart gun, gravity knife, switchblade knife, pilum ballistic knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub, wristbrace type slingshot or slungshot, shirken or "Kung Fu star"; or
(2) He possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another; or
(3) He knowingly has in his possession a rifle, shotgun or firearm in or upon a building or grounds, used for educational purposes, of any school, college or university, except the forestry lands, wherever located, owned and maintained by the State University of New York college of environmental science and forestry, without the written authorization of such educational institution; or
. . .
(5) He possesses any dangerous or deadly weapon and is not a citizen of the United States. . . .
N.Y. Penal Law § 265.01 (McKinney 1988).
A firearms statute is "divisible" if it encompasses offenses that constitute firearms violations and offenses that do not. See generally Matter of N-, 8 I&N Dec. 466, 467 (BIA 1959) (). Section 265.01 of the New York Penal Law consists of five subdivisions.2 The third subdivision involves a firearm, and the first subdivision could, but may not necessarily, involve a firearms conviction. As such, it is a divisible statute.
To sustain its charge of deportability under section 241(a)(2)(C) where the respondent has been convicted under a divisible statute, the Immigration and Naturalization Service must establish by clear, unequivocal, and convincing proof that the respondent was, in fact, convicted of criminal possession of a firearm. See Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992); Matter of Rodriguez-Cortes, 20 I&N Dec. 587 (BIA 1992). In other words, there must be proof that possession of a firearm is an integral element of the crime of which the respondent was convicted. See Matter of Lopez-Amaro, 20 I&N Dec. 668 (BIA 1993), aff'd, 25 F.3d 986 (11th Cir. 1994), cert. denied, 513 U.S. 1146 (1995); Matter of P-F-, 20 I&N Dec. 661 (BIA 1993); Matter of K-L-, 20 I&N Dec. 654 (BIA 1993), aff'd sub nom. Lee v. INS, 12 F.3d 1102 (8th Cir. 1993).
It is the crime that an alien is actually convicted of which is determinative. See generally Cabral v. INS, 15 F.3d 193 (1st Cir. 1994); Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993); United States ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Cir. 1933); United States ex rel. Robinson v. Day, 51 F.2d 1022 (2d Cir. 1931). As this Board and the courts have consistently held in cases dealing with the issue of deportability based on conviction for a crime involving moral turpitude, it is the nature of the crime as defined by statute and interpreted by the courts and as limited and described by the record of conviction which determines whether an alien falls within the reach of that law. See Gonzalez-Alvarado v. INS, 39 F.3d 245 (9th Cir. 1994); Cabral v. INS, supra; Okabe v. INS, 671 F.2d 863 (5th Cir. 1982); Chiaramonte v. INS, 626 F.2d 1093 (2d Cir. 1980); United States ex rel. Giglio v. Neelly, 208 F.2d 337 (7th Cir. 1953); United States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939); Matter of Franklin, 20 I&N Dec. 867 (BIA 1994), aff'd, 72 F.3d 571 (8th Cir. 1995); Matter of Serna, 20 I&N Dec. 579 (BIA 1992); Matter of Short, 20 I&N Dec. 136 (BIA 1989); Matter of Danesh, 19 I&N Dec. 669 (BIA 1988); Matter of Khalik, 17 I&N Dec. 518 (BIA 1980); Matter of Esfandiary, 16 I&N Dec. 659 (BIA 1979); Matter of McNaughton, 16 I&N Dec. 569 (BIA 1978).
The record of conviction includes the charge, indictment, plea, judgment or verdict, sentence, and transcript from court proceedings. See, e.g., Matter of Rodriguez-Cortes, supra, at 588; Matter of Short, supra, at 137-38 (); Matter of Mena, 17 I&N Dec. 38 (BIA 1979) (); Matter of Esfandiary, supra, at 661 (); Matter of Ghunaim, 15 I&N Dec. 269, 270 (BIA 1975) (). We also consider those documents enumerated in the regulations to be admissible evidence in proving a criminal conviction in any proceeding before an Immigration Judge. See 8 C.F.R. § 3.41 (1995).
In finding that the Service had satisfied its burden of establishing deportability, the Immigration Judge considered a transcript from the plea and sentence hearing of the criminal proceedings.3 That document is a part of the record of conviction and was properly relied on by the Immigration Judge. See Matter of Mena, supra; 8 C.F.R. § 3.41(a)(4). The transcript of the plea and sentence hearing includes the following exchange:
Neither party has addressed the issue of whether the indictment could properly have been relied on in determining whether the respondent was convicted of a "firearms offense," and so we will not address it.
Accordingly, the Immigration Judge properly found that, based upon the respondent's record of conviction, the Service established that the respondent had been convicted of a firearms offense, and thus is deportable under section 241(a)(2)(C) of the Act. Therefore, the Service has established deportability by clear, unequivocal, and convincing evidence, as required by Woodby v. INS, 385 U.S. 276 (1966); 8 C.F.R. § 242.14(a) (1995).
As further challenge to his conviction, the respondent argues that he was improperly charged. We note first that the respondent pled guilty to the criminal charge, and the record of proceedings indicates that his conviction constitutes a final conviction for immigration purposes. Matter of...
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