In re Pichardo-Sufren

• Decision Date: 23 April 1996
• Docket Number: File A37 159 405.,Interim Decision No. 3275.
• Citation: 21 I&N Dec. 330
• Parties: In re Pedro Aricio PICHARDO-Sufren, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

21 I&N Dec. 330

In re Pedro Aricio PICHARDO-Sufren, Respondent.

Interim Decision No. 3275.

File A37 159 405 - Boston.

Board of Immigration Appeals.

Decided April 23, 1996.

(1) Where the statute under which an alien has been convicted encompasses offenses that constitute firearms violations and offenses that do not, the Board of Immigration Appeals will look beyond the statute, but only to consider such facts which appear from the record of conviction, or other documents admissible under federal regulations as evidence in proving a criminal conviction, to determine whether the specific offense for which the alien was convicted constitutes a firearms violation within the meaning of section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (1994).

(2) Where the only criminal court document offered into the record to prove an alien's deportability under section 241(a)(2)(C) of the Act consists of a Certificate of Disposition which fails to identify the subdivision under which the alien was convicted or the weapon that he was convicted of possessing, deportability has not been established, even where the alien testifies that the weapon in his possession at the time of his arrest was a gun, since it is the crime that the alien was convicted of rather than a crime that he may have committed which determines whether he is deportable.

FOR RESPONDENT: Mark L. Galvin, Esquire, Providence, Rhode Island.

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSENBERG, MATHON, and GUENDELSBERGER, Board Members.

FILPPU, Board Member.

On May 9, 1994, an Immigration Judge found the respondent deportable under sections 241(a)(2)(B)(i) and (C) of the Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(2)(B)(i) and (C) (1994), and determined that he was ineligible for relief under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994). The respondent, a native and citizen of the Dominican Republic and a lawful permanent resident of the United States since 1981, has appealed, challenging only that portion of the Immigration Judge's decision finding him deportable under section 241(a)(2)(C) of the Act and determining him to be ineligible for section 212(c) relief. The Immigration and Naturalization Service has not filed a brief on appeal. The respondent's appeal will be sustained.

I. ISSUE PRESENTED

The issue to be resolved here is whether the respondent's deportation hearing testimony regarding the incident which gave rise to his 1988 conviction for criminal possession of a weapon in the third degree constitutes clear, unequivocal, and convincing proof of his deportability under section 241(a)(2)(C) of the Act, where the identity of the weapon that he was convicted of possessing and the subdivision of the law under which he was convicted cannot be ascertained from the conviction document that was offered into evidence and made a part of the record.

II. THE HEARING BELOW

The Immigration and Naturalization Service instituted deportation proceedings against the respondent, charging him with deportability under sections 241(a)(2)(B) and (C) of the Act. At his deportation hearing, the respondent admitted to having been convicted in 1993 of possession of cocaine, as alleged in the Service's charging document, and conceded his deportability under section 241(a)(2)(B) of the Act. The Service also alleged that the respondent had been convicted "of criminal possession of a weapon, third degree, to wit: a firearm." The respondent pled to this factual allegation, admitting that he had been convicted of third degree weapons possession, but denied that it was a conviction for a firearms violation and, accordingly, denied his deportability under section 241(a)(2)(C) of the Act.

During the deportation hearing, a Certificate of Disposition from the Supreme Court, County of Bronx, New York, was admitted into the record, revealing that the respondent was convicted on February 16, 1988, of criminal possession of a weapon in the third degree. The respondent also was questioned about the circumstances which gave rise to his weapons conviction, and, in the course of that testimony and after having previously denied his deportability under section 241(a)(2)(C) of the Act, the respondent described the weapon as a gun.

Based on this evidence, the Immigration Judge determined that the respondent was deportable under section 241(a)(2)(C) of the Act and ineligible for relief under section 212(c) of the Act. See Woodby v. INS, 385 U.S. 276 (1966); Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991), aff'd, 983 F.2d 231 (5th Cir. 1993). In so finding, the Immigration Judge relied upon the Certificate of Disposition, the respondent's admission that he had been convicted of a weapons violation, and the respondent's deportation hearing testimony that the weapon involved was a gun.

III. APPLICABLE LAW

In pertinent part, section 241(a)(2)(C) of the Act provides that "[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) in violation of any law is deportable."

The record shows the respondent was convicted under the laws of the State of New York of criminal possession of a weapon in the third degree. The New York statute under which the respondent was convicted was not submitted into the record, nor was the section number of the statute given. However, the respondent represents on appeal and this Board concludes, after searching through the criminal statutes of the State of New York, that the respondent was convicted under section 265.02 of the New York Penal Law.

At the time the respondent was convicted, section 265.02 provided as follows:

A person is guilty of criminal possession of a weapon in the third degree when:

(1) He commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime;¹

(2) He possesses any explosive or incendiary bomb, bombshell, firearm silencer, machine-gun or any other firearm or weapon simulating a machine-gun and which is adaptable for such use; or

(3) He knowingly has in his possession a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun; or

(4) He possesses any loaded firearm. Such possession shall not, except as provided in subdivision one, constitute a violation of this section if such possession takes place in such person's home or place of business.

(5)(i) He possesses twenty or more firearms; or (ii) he possesses a firearm and has been previously convicted of a felony or a class A misdemeanor defined in this chapter within the five years immediately preceding the commission of the offense and such possession did not take place in the person's home or place of business.

Criminal possession of a weapon in the third degree is a class D felony.

N.Y. Penal Law § 265.02 (McKinney 1988).

IV. DISCUSSION

At the outset, we point out that this is not a case where an alien admits in pleadings that he was convicted of a firearms violation. Nor are we faced with a case where deportability was conceded. The respondent did not admit to the truth of the Service's factual allegation that he was convicted of a firearms violation. He did not concede his deportability under section 241(a)(2)(C) of the Act, nor did he at any point in the hearing testify that he was convicted of a firearms violation.² However, the respondent did testify to the underlying conduct which gave rise to his weapons conviction and admitted in the course of that testimony that the weapon involved was a gun. It is the Immigration Judge's use of this extrinsic testimonial evidence to find the respondent deportable which is being contested by the respondent and which we now address on appeal.

By its very terms, section 241(a)(2)(C) of the Act renders deportable only aliens who have been convicted of firearms violations. Thus, an alien who may have committed a firearms violation but was never convicted of such a violation does not fall within the purview of section 241(a)(2)(C) of the Act.

There is no dispute that the respondent pled guilty to and was convicted of criminal possession of a weapon in the third degree. In fact, this conviction may support a finding of deportability under section 241(a)(2)(C) of the Act, but only if the record contains clear, unequivocal, and convincing proof that possession of a firearm was an integral element of the offense that the respondent was convicted of committing. 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); see also Woodby v. INS, supra. In other words, the evidence of record must establish that the respondent was, in fact, convicted of criminally possessing a firearm within the meaning of section 241(a)(2)(C) of the Act. Accordingly, the starting point of our analysis is the criminal statute under which the respondent suffered his weapons conviction. See Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992); Matter of Rodriguez-Cortes, 20 I&N Dec. 587 (BIA 1992).

We begin by noting that nowhere in the record file is there any evidence of the particular subdivision of section 265.02 of the New York Penal Law which the respondent was convicted of violating. This fact is pertinent in that as the respondent correctly points out on appeal, section 265.02 is a "divisible" statute which encompasses crimes which do and crimes which do...