In re Vasquez-Muniz
| Citation | 23 I&N Dec. 207 |
| Decision Date | 15 January 2002 |
| Docket Number | Interim Decision Number 3461,File A36 621 740. |
| Parties | In re Carlos VASQUEZ-MUNIZ, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman; SCHMIDT, HURWITZ, VILLAGELIU, FILPPU, COLE, GUENDELSBERGER, GRANT, MOSCATO, OHLSON, HESS, and PAULEY, Board Members. Concurring Opinion: HOLMES, Board Member. Concurring and Dissenting Opinion: ROSENBERG, Board Member, joined by MILLER, BRENNAN, ESPENOZA, and OSUNA, Board Members.
SCIALABBA, Acting Chairman:
This matter first came before us on December 1, 2000, when we issued a published precedent, Matter of Vasquez-Muniz, Interim Decision 3440 (BIA 2000), holding that the respondent's conviction for possession of a firearm by a felon did not constitute a conviction for an aggravated felony within the meaning of section 101(a)(43) of Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (1994 & Supp. V 1999).
Subsequent to our precedent decision, the United States Court of Appeals for the Ninth Circuit, within whose jurisdiction this case arose, concluded that felony possession of a firearm in violation of section 12021(a) of the California Penal Code constitutes an aggravated felony "`as an offense described in' 18 U.S.C. § 922(g)(1)," the federal statute criminalizing possession of a firearm by a felon. United States v. Castillo-Rivera, 244 F.3d 1020, 1025 (9th Cir.) () cert. denied, 122 S. Ct. 294 (2001). On April 27, 2001, nearly 5 months after our original decision in the case, the Immigration and Naturalization Service filed a motion to reconsider our original decision, arguing, among more substantive points, that the Service is not bound by regulations imposing a 30-day deadline on motions to reconsider in removal proceedings. 8 C.F.R. § 3.2(b)(2) (2001).
We need not address the Service's arguments concerning the timeliness of its motion. Instead, in view of the importance of the matter and the inconsistency between our prior decision and that of the Ninth Circuit, and upon a close examination of the statute, we find it appropriate to reconsider the matter upon our own motion, pursuant to 8 C.F.R. § 3.2(a).
Upon reconsideration, our prior decision in this matter will be vacated, the Service's appeal will be sustained, and the respondent will be ordered removed from the United States.
The issue before us is whether possession of a firearm by a felon in violation of section 12021(a)(1) of the California Penal Code is a crime "described in" section 101(a)(43)(E)(ii) of the Act, and is therefore an aggravated felony.1
The respondent was admitted to the United States as a lawful permanent resident in 1978. In 1991, when he was 18 years old, he was convicted of robbery in California and was sentenced to 180 days in jail and 36 months of probation. On June 4, 1996, the respondent was convicted in the Superior Court of California for the County of Los Angeles of "possession of a firearm by a felon—one prior" in violation of section 12021(a)(1) of the California Penal Code. The respondent was sentenced to 32 months in prison as a result of this conviction.
On August 11, 1999, the Service issued a Notice to Appear (Form I-862) and instituted removal proceedings against the respondent. Initially, he was charged under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. V 1999), as an alien convicted of a firearms offense. Subsequently, the Service lodged a charge under section 237(a)(2)(A)(iii) of the Act, alleging that the respondent was convicted of an aggravated felony as defined in section 101(a)(43)(E)(ii) of the Act.
The respondent admitted the facts alleged in the Notice to Appear and conceded that he was removable under section 237(a)(2)(C) of the Act as a result of his conviction for a firearms offense, but he contested removability on the aggravated felony charge. The Immigration Judge asked the Service attorney to identify which of the offenses referenced in section 101(a)(43)(E)(ii) was the basis for the aggravated felony charge. The Service attorney stated that it was 18 U.S.C. § 922(g)(1) (1994).
The Immigration Judge found that the respondent was subject to removal under section 237(a)(2)(C) of the Act, as an alien convicted of a firearms offense, but not under section 237(a)(2)(A)(iii) of the Act, as an alien convicted of an aggravated felony.
The Immigration Judge found that the respondent's state crime was not an aggravated felony because it was not "described in" the federal statute referenced in the aggravated felony provision, as required. See section 101(a)(43)(E) of the Act. He reached this conclusion because the federal offense of possession of a firearm by a felon contains an "interstate commerce" element, whereas the respondent's state offense did not. The Immigration Judge concluded that the respondent was not ineligible to apply for cancellation of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (Supp. V 1999), and he allowed the respondent to fully present his application for relief from removal. He ultimately granted this relief as a matter of discretion and terminated removal proceedings. The Service appealed. Rejecting an argument put forward by the Service, a majority of this Board upheld the Immigration Judge's decision in our prior published order. We now reconsider that decision.
To determine whether, on its face, the respondent's state offense of felony possession of a firearm is a crime "described in" the aggravated felony provision at section 101(a)(43)(E) of the Act, we compare the state crime the respondent committed with the federal crime described in the aggravated felony provision. If the respondent's state crime is "described in" the federal statute, then the respondent's crime is an aggravated felony.
Section 12021(a)(1) of the California Penal Code provides, in relevant part:
Any person who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, . . . who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.
Cal. Penal Code § 12021(a)(1) (West 1996). The federal statute at 18 U.S.C. § 922(g)(1) provides, in relevant part:
It shall be unlawful for any person —
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
. . .
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
The elements of the state and federal crimes are substantially the same: knowing possession of a firearm by a person who has been convicted of a felony. Compare People v. Jeffers, 49 Cal. Rptr. 2d 86, 89 (Cal. Ct. App. 1996) (), with United States v. Taylor, 113 F.3d 1136, 1144 (10th Cir. 1997) (). The state statute, however, lacks the third element of the federal crime, "affecting interstate or foreign commerce." This third element, as acknowledged in our prior order in this matter, is often referred to as the "jurisdictional element," which brings the criminal provision within federal legislative power under the Commerce Clause of the United States Constitution. See U.S. Const. art. I, § 8, cl. 3; see also United States v. Lopez, 514 U.S. 549, 561 (1995); United States v. Bass, 404 U.S. 336 (1971).
In view of the above, the key to the meaning of the Act is to determine whether section 101(a)(43)(E) encompasses a state crime having no federal jurisdictional element, such as the respondent's offense, as a crime "described in" the enumerated federal statutes. If so, the purely "jurisdictional element" of the federal statute loses its significance for determining whether the state crime is an aggravated felony.
For the many reasons that follow, we find that the respondent's state crime is indeed "described in" section 101(a)(43)(E)(ii) of the Act, and is thus an aggravated felony regardless of whether it includes the purely jurisdictional element of "affecting interstate commerce." Our decision in Matter of Vasquez-Muniz, supra, is therefore overruled.
When we engage in statutory interpretation, our first and most critical inquiry must be the plain meaning of the statute. In making this inquiry, it is important that we examine the language in its proper place within the context and design of the statute as a whole. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988); Matter of Alvarado-Alvino, Interim Decision 3391 (BIA 1999).
The aggravated felony provision appears at section 101(a)(43) of the Act. We understand this provision to function as an identifier of certain categories of criminal conduct to which the Act attaches negative...
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