Matter of P---- F----
| Decision Date | 09 June 1993 |
| Docket Number | A-24716046,Interim Decision Number 3201 |
| Citation | 20 I&N Dec. 661 |
| Parties | MATTER OF P---- F---- In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent appeals from a decision dated October 22, 1992, in which the immigration judge found the respondent deportable as charged and ineligible for relief from deportation and ordered him deported to Haiti. The appeal will be dismissed. The request for oral argument is denied.
The respondent is a native and citizen of Haiti who entered the United States without inspection in November 1980. On August 28, 1987, his status was adjusted to that of a lawful permanent resident.1 On April 25, 1991, the respondent was convicted of armed burglary of a dwelling with a handgun or pistol and armed robbery with a firearm in violation of sections 810.02 and 812.13 of the Florida Statutes. On April 13, 1992, the Immigration and Naturalization Service issued an Order to Show Cause and Notice of Hearing (Form I-221) against the respondent, charging him with deportability under section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. III 1991), as an alien convicted of a firearm offense. At a deportation hearing on October 22, 1992, the respondent, through counsel, admitted the allegations in the Order to Show Cause, denied deportability, and sought relief from deportation in the form of asylum, withholding of deportation, and a waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. III 1991). The immigration judge found the respondent deportable as charged and ineligible for the requested relief, giving rise to the instant appeal.
On appeal, the respondent challenges his deportability and argues that his conviction does not preclude him from seeking section 212(c) relief or asylum.
We will first address whether the respondent has been convicted of a firearm offense. Section 241(a)(2)(C) of the Act provides for the deportability of any alien who
at any time after entry is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying in violation of any law, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code).
Robbery with a firearm is defined under section 812.13 of the Florida Statutes as follows, in pertinent part:
(1) "Robbery" means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree ....
Fla. Stat. Ann. § 812.13 (West 1993).
Burglary with a firearm is defined as follows under section 810.02 of the Florida Statutes, in pertinent part:
(1) "Burglary" means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided ... if, in the course of committing the offense, the offender:
....
(b) Is armed, or arms himself within such structure or conveyance, with explosives or a dangerous weapon.
Fla. Stat. Ann. § 810.02 (West 1992).
The record reflects that the respondent was charged with burglarizing a home and committing armed robbery within that home. According to the criminal information, the respondent was armed with a handgun and/or pistol during the commission of the armed burglary of a dwelling and was armed with a firearm during the commission of the armed robbery.2 He was convicted of the first degree felonies of armed burglary of a dwelling under Florida Statutes section 810.02 and armed robbery under section 812.13.
The respondent's use of a firearm during the commission of the robbery and burglary triggered the application of section 775.087(2)(a) of the Florida Statutes, which provides for a 3-year mandatory minimum sentence for "[a]ny person who is convicted of ... murder, sexual battery, robbery, [or] burglary ... and who had in his possession a `firearm.'"
The respondent contends that he has been convicted of violating general criminal statutes, i.e., armed robbery and burglary, and that firearm use is not an element of these offenses. In support of his proposition he cites Matter of Carrillo, 16 I&N Dec. 625 (BIA 1978). In Matter of Carrillo the Board held that a conviction for unlawful possession of a firearm during the commission of a felony, to wit: possession of heroin with intent to distribute, did not constitute a violation of a law relating to the illicit possession of a narcotic drug. The respondent also cites in support of his proposition Castaneda de Esper v. INS, 557 F.2d 79 (6th Cir. 1977), in which an alien convicted of misprision of a felony, to wit: conspiracy to possess narcotics, was found not to have committed a violation of a law relating to narcotic drugs.
The respondent contends that the deadly weapon element in section 812.13 of the Florida Statutes (defining robbery) includes a broader category of weapons than firearms. The respondent notes that he did not receive a sentence enhancement for use of a firearm. See Fla. Stat. Ann. § 775.084 (West 1992). Rather, he was sentenced under section 775.087(2)(a), which provides for a mandatory 3-year minimum sentence for use of a weapon during a felony. He contends that the mandatory minimum provision exempts any "felony in which the use of a weapon or firearm is an essential element," citing section 775.087(1) of the Florida Statutes.3 Therefore, he asserts, firearm possession is not an element of his conviction.
The Service argues that the respondent has been convicted of a firearm offense. The Service points out that the respondent was convicted of first degree felonies, which reflect use of a dangerous weapon or explosives for a burglary conviction, and use of a firearm or other deadly weapon for an armed robbery conviction. In Wallace v. State, 573 So. 2d 1010 (Fla. 1991), the court found that possession of a firearm was an essential element of the crime of attempted robbery with a firearm. Therefore, it held, the defendant was improperly convicted of possession of a firearm during the commission of a felony, because the elements of that offense were contained within the attempted robbery conviction. The Service also cites Williams v. State, 517 So. 2d 681 (Fla. 1988), for the proposition that the 3-year mandatory minimum sentence provision is limited to persons using a firearm or destructive device in the commission of the crime.
We find merit in the Service's arguments on appeal. Use of a firearm or deadly weapon is the element of the respondent's conviction for robbery which elevates it to a first degree offense. See Wallace v. State, supra. Furthermore, the respondent's conviction record reflects that he was subject to a 3-year mandatory minimum sentence for use of a firearm. Such a sentence cannot be imposed unless the defendant himself used a firearm or destructive device in the commission of the crime. Fla. Stat. Ann. § 775.087(2)(a) (West 1992); Sears v. State, 539 So. 2d 1174 (Fla. Dist. Ct. App. 1989) (). Imposition of the mandatory minimum sentence is required where the defendant has been convicted of use of a firearm.
The cases cited by the respondent in support of his contention that he has not been convicted of a firearm violation are inapposite. Castaneda de Esper v. INS, supra, and Matter of Carrillo, supra, involved convictions for misprision of a felony and possession of a firearm during the commission of a felony, respectively. Those convictions in and of themselves did not relate to narcotics, but could be based on any underlying felonious act. Matter of Carrillo, supra, at 626-27. The underlying narcotic-related acts were separate and distinct from the convictions. In the instant case, the respondent has been convicted of use of a firearm in the commission of armed burglary and robbery. The use of a firearm is not in the nature of an underlying offense, but is instead an element of the offense itself, as reflected in the elevation of each conviction to the first degree and the triggering of a mandatory minimum sentence for firearm use under section 775.087(2) of the Florida Statutes.
The mandatory minimum provision at issue in the instant case is distinguishable from the sentence enhancement...
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