Matter of Rodriguez-Cortes
| Decision Date | 19 October 1992 |
| Docket Number | Interim Decision Number 3189,A-35913271. |
| Citation | 20 I&N Dec. 587 |
| Parties | MATTER OF RODRIGUEZ-CORTES In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated February 27, 1992, the immigration judge found the respondent deportable on her own admissions under section 241(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (Supp. III 1991), as an alien convicted of an aggravated felony at any time after entry, and under section 241(a)(2)(C) of the Act, as an alien convicted at any time after entry of a firearm violation. The immigration judge further ordered the respondent deported from the United States to Mexico. The respondent timely appealed from that decision. The respondent's request for oral argument before the Board is denied as a matter of discretion. See 8 C.F.R. § 3.1(e) (1992). The appeal will be sustained and the record will be remanded for further proceedings.
The respondent is a female native and citizen of Mexico, who was admitted to the United States as an immigrant on November 4, 1977. On November 9, 1988, the respondent and two other individuals were principally charged in a five-count information of attempted willful, deliberate, premeditated murder of five individuals in violation of sections 664 and 187(a) of the California Penal Code. The respondent was accused under the name of Ana Cortez, and she was named in all five counts. The information also alleged in the five counts that the respondent's codefendant personally used a firearm within the meaning of sections 1203.06(a)(1) and 12022.5 of the California Penal Code in the commission and attempted commission of the charged offenses, causing the offenses to become serious felonies pursuant to section 1192.7(c)(8) of the California Penal Code. Additionally, the information stated in special allegations in the five counts that a principal in the attempted murder offenses was armed with a firearm, namely a handgun, in the commission and attempted commission of the offenses, with such arming not being an element of the charged offenses within the meaning of section 12022(a) of the California Penal Code.
On June 15, 1989, the respondent was convicted by pleas of nolo contendere in the Superior Court of California, County of Los Angeles, of five counts of attempted murder in the second degree, a felony, in violation of sections 664 and 187(a) of the California Penal Code. The respondent was sentenced to 5 years in prison for count one with 7-year concurrent terms for the other four counts. The conviction record in evidence reflects that the respondent's 5-year sentence for count one was enhanced by 1 year for a total term of 6 years pursuant to section 12022(a) of the California Penal Code, predicated on a finding that one of the principal codefendants was armed with a firearm in the attempted commission of the felony offense.
In an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) dated January 3, 1992, the respondent was charged with deportability under sections 241(a)(2)(A)(iii) and (C) of the Act. A hearing commenced before the immigration judge on February 27, 1992, where the respondent, who was unrepresented by counsel, admitted the five factual allegations contained in the Order to Show Cause. Based on the respondent's admissions and the conviction record, the immigration judge found her deportable as charged. There was no issue that the respondent had attained the 7 consecutive years of lawful permanent residence required for a waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. III 1991). However, the immigration judge found the respondent ineligible to apply for section 212(c) relief based on the charge of deportability for a firearm offense under section 241(a)(2)(C) of the Act. The respondent did not apply for any other relief. On appeal, the respondent contests only the immigration judge's finding that she is ineligible for a section 212(c) waiver.1
In order to determine if the respondent is eligible for a section 212(c) waiver of inadmissibility, we must address the question whether she is deportable pursuant to section 241(a)(2)(C) of the Act. That section of the Act provides as follows:
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) is deportable. (Emphasis added.)
The United States Court of Appeals for the Ninth Circuit has held that a section 212(c) waiver of inadmissibility which provides for discretionary relief from exclusion does not apply to the deportation ground for firearm offenses. See Cabasug v. INS, 847 F.2d 1321 (9th Cir. 1988); see also Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991) (holding by the Attorney General that an alien deportable under section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2) (1988), for entry without inspection is not eligible for a section 212(c) waiver because there is no comparable ground of exclusion, aff'd, 983 F.2d 231 (5th Cir. 1993); Matter of Wadud, 19 I&N Dec. 182 (BIA 1984); Matter of Granados, 16 I&N Dec. 726 (BIA 1979) (), aff'd, 624 F.2d 191 (9th Cir. 1980)....
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