In re Vasquez-Muniz
| Decision Date | 01 December 2000 |
| Docket Number | File A36 621 740.,Interim Decision No. 3440. |
| Citation | 22 I&N Dec. 1415 |
| Parties | In re Carlos VASQUEZ-MUNIZ, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated November 2, 1999, an Immigration Judge found that the respondent was subject to removal under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. IV 1998), 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 further determined that the respondent was statutorily eligible for cancellation of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (Supp. IV 1998), and that such relief should be granted in the exercise of discretion. The Immigration and Naturalization Service has appealed from this decision. The appeal will be dismissed. The request for oral argument is denied. 8 C.F.R. § 3.1(e) (2000).
The facts of this case are not significantly in dispute. The respondent was admitted to the United States as a lawful permanent resident in 1978 when he was 5 years old. In 1991, when he was 18 years old, the respondent was convicted of robbery in California and was sentenced to 180 days in jail and 36 months of probation. On December 19, 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, which provides as follows:
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). According to court records, the respondent was sentenced to the "low term" of 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. He was initially charged with removability under section 237(a)(2)(C) of the Act as an alien convicted of a firearms offense. The Service subsequently lodged an additional charge of removability under section 237(a)(2)(A)(iii), alleging that the respondent was convicted of an aggravated felony as defined in section 101(a)(43)(E)(ii) of the Act, 8 U.S.C. § 110l(a)(43)(E)(ii) (1994). This provision includes within the definition of "aggravated felony"
an offense described in—
. . .
(ii) sections 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of title 18, United States Code ().
Section 101(a)(43)(E)(ii) of the Act.
During the course of the proceedings, the respondent admitted the facts alleged in the Notice to Appear, 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 denied 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).2 The Immigration Judge noted that "affecting interstate commerce" is an element of the offense under § 922(g), but that this was not an element of the respondent's crime under section 12021(a)(1) of the California Penal Code. However, the Service argued before the Immigration Judge that there is a presumption that any weapon manufactured in the United States or abroad affects interstate commerce and that it was the respondent's burden to establish that the weapon he possessed "was produced locally, . . . never was shipped anywhere else, . . . wasn't sold or bought across state lines, thereby not affecting interstate commerce." The Immigration Judge was not persuaded by the Service's argument in this regard. Accordingly, he found that the respondent was eligible to apply for cancellation of removal under section 240A(a) of the Act and allowed him to fully present his application for relief from removal.
In his November 2, 1999, decision, the Immigration Judge ruled that the Service had not met its burden of establishing that the respondent was removable as an alien convicted of an aggravated felony within the definition of section 101(a)(43)(E)(ii) of the Act. The Immigration Judge held that the respondent's conviction under section 12021(a)(1) of the California Penal Code was not a conviction for an offense "described in" 18 U.S.C. § 922(g)(1) because it lacked "the essential elements of affecting commerce." The Immigration Judge ruled alternatively, and more broadly, that to be subject to removal based on a conviction for an aggravated felony as defined in section 101(a)(43)(E)(ii) of the Act, an alien must have been convicted of one of the federal offenses specified therein. The Immigration Judge additionally found that the respondent had adequately demonstrated that a grant of relief under section 240A(a) of the Act was warranted as a matter of discretion. Accordingly, he granted the respondent's application for cancellation of removal and terminated removal proceedings.
The Service has appealed from the Immigration Judge's finding that the respondent was not removable as an alien convicted of an aggravated felony and was therefore statutorily eligible to apply for cancellation of removal under section 240A(a) of the Act.3 The Service acknowledges that in order to obtain a conviction under 18 U.S.C. § 922(g)(1), it must be established that (1) the defendant was previously convicted of a felony; (2) the defendant thereafter knowingly possessed a firearm; and (3) the possession was in or affecting interstate or foreign commerce. See United States v. Taylor, 113 F.3d 1136, 1144 (10th Cir. 1997). The third element is often referred to as the "jurisdictional element," which brings the criminal provision within federal legislation 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). The Service argues that it need not establish that the state offense of which the respondent was convicted contains a federal "jurisdictional element" to bring it within the definition set forth in section 101(a)(43)(E)(ii) of the Act. Rather, it asserts that only the first two "substantive" elements necessary for a conviction under 18 U.S.C. § 922(g)(1) must be established for a state offense to be deemed an offense "described in" § 922(g)(1).
In this regard, the Service notes that the starting point of statutory interpretation must be the language employed by Congress, and that it is assumed that the legislative intent and purpose of Congress is expressed by the ordinary meaning of the words used. INS v. Cardoza-Fonseca, 480 U.S 421 (1987). "In its ordinary sense," the Service argues, the phrase "`described in'[in section 101(a)(43)(E)(ii) of the Act] means that which is analogous or similar in nature to that which is being compared." It urges that if Congress had intended to require the Service to prove there was a federal "jurisdictional element" in a state crime of which an alien has been convicted, Congress would have so stated in the language of section 101(a)(43), or it simply would have required conviction for a federal crime to establish removability under section 101(a)(43)(E)(ii).
As further support for its position, the Service analogizes the firearms provisions of 18 U.S.C. § 922 to the Controlled Substances Act, 18 U.S.C. § 801 (1994), observing that both implicate Congress' authority to regulate interstate commerce. It asserts that
[d]espite the federal jurisdictional implications within the Controlled Substances Act, neither the Board nor Federal Courts have ever required that in order to establish removability pursuant to Section 101(a)(43)(B) of the Act, the Service had to somehow establish that the state crime for which the alien was being deported had some sort of analogous federal "jurisdictional element" within it or federal jurisdictional implications within its statutory framework.
Moreover, the Service notes that the "aggravated felony" definition in section 101(a)(43) provides that "[t]he term applies to an offense described in this paragraph whether in violation of Federal or State law." According to the Service, the Immigration Judge's ruling in this case renders this language in section 101(a)(43) "superfluous and meaningless." The Service thus contends
that when looking at the phrase "described in" within the context of the aggravated felony provisions and in looking at precedent Board decisions, there are no requirements or decisions requiring that the Service establish that the state crime for which the alien was convicted, had, within it, a federal ...
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