Vue v. I.N.S.

• Decision Date: 12 August 1996
• Docket Number: No. 95-2152,95-2152
• Citation: 92 F.3d 696
• Parties: Kao VUE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, District Director, Carl R. Houseman, United States of America, Janet Reno, Attorney General, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 696

92 F.3d 696

Kao VUE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, District Director Carl R. Houseman, United States of America, Janet Reno, Attorney General, Respondents.

No. 95-2152.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 12, 1996.

Decided Aug. 12, 1996.

David Shulma, Minneapolis, MN, argued (Cathryn Middlebrook, on the brief), for petitioner.

Hugh Mullane, Washington DC, argued (Frank W. Hunger, William J. Howard, and Carl H. McIntyre, on the brief), for respondent.

Before McMILLIAN, LAY and HANSEN, Circuit Judges.

McMILLIAN, Circuit Judge.

Kao Vue (petitioner) seeks review of a final decision of the Board of Immigration Appeals (BIA) dismissing his appeal from a deportation order entered by an immigration judge (IJ) (hereinafter "IJ order"). In re Kao Vue, No. A23 864 378 (B.I.A. Apr. 13, 1995) (order dismissing appeal) (hereinafter "BIA order"). The IJ found petitioner deportable under both § 241(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1251(a)(2)(A)(iii) (aggravated felony convictions), and § 241(a)(2)(C) of the INA, 8 U.S.C. § 1251(a)(2)(C) (certain firearms offenses). Petitioner appealed to the BIA, arguing that the IJ erred in holding that his conviction under Minnesota state law for aggravated robbery constituted a firearms offense within the meaning of § 1251(a)(2)(C). BIA order at 2-5. Petitioner raises the same issue in the present petition. He challenges the BIA's holding that § 1251(a)(2)(C) applies to his aggravated robbery conviction even though use of a firearm per se is not an essential element of that state law offense. For the reasons discussed below, we affirm.

Background

Petitioner, an adult male, is a native and citizen of Laos. He entered the United States as a refugee in 1979, and his status was adjusted to lawful permanent resident in 1983. On October 14, 1991, petitioner pled guilty in Minnesota state court to charges of attempted murder and aggravated robbery, for which he is currently serving a sentence of 296 months (24 years and 8 months).

On January 14, 1993, the Immigration and Naturalization Service (INS) issued an order to show cause charging petitioner with deportability under 8 U.S.C. § 1251(a)(2)(A)(iii) ("[a]ny alien who is convicted of an aggravated felony at any time after entry is deportable"). On April 13, 1994, the INS supplementally charged petitioner with deportability under 8 U.S.C. § 1251(a)(2)(C). Section 1251(a)(2)(C) provides:

[a]ny alien who at any time after entry is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of Title 18) in violation of any law is deportable.

The INS claimed that petitioner was deportable under § 1251(a)(2)(C) on the basis of his 1991 conviction for aggravated robbery. Under Minn.Stat. Ann. § 609.245 (West 1991), aggravated robbery has the following definition: "[w]hoever, while committing a robbery, is armed with a dangerous weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or inflicts bodily harm upon another, is guilty of aggravated robbery." Another Minnesota statute in the same chapter defines "dangerous weapon" to include "any firearm, whether loaded or unloaded." Id. § 609.02(6) (West 1991).

Prior to petitioner's deportation hearing, the INS filed certain documents with the IJ for the IJ to consider as part of petitioner's record of conviction. Among the documents submitted by the INS was the amended criminal complaint which had been filed against petitioner in 1991. See Certified Administrative Record at 151-56 (amended criminal complaint). The amended criminal complaint contained seven counts, of which petitioner had pled guilty to two in Minnesota state court. One of those two counts, Count 3 (charging petitioner with aggravated robbery), stated the following:

[The defendant, h]aving knowledge of not being entitled thereto, took personal property, namely numerous firearms, from John Granlund, or in the presence of John Granlund, and used or threatened the [im]minent use of force against John Granlund to overcome his resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property and, while committing the robbery, defendant Kao Vue was armed with a dangerous weapon, namely a Ruger G.P.100 .357 revolver.

Id. at 154 (emphasis added).

At his deportation hearing, petitioner did not dispute his deportability under 8 U.S.C. § 1251(a)(2)(A)(iii) (aggravated felony convictions). IJ order at 2. He also did not contest the authenticity of the amended criminal complaint submitted by the INS, nor did he deny that he had pled guilty to, and was convicted of, the count charging him with aggravated robbery. Id. Rather, his sole contention was that his aggravated robbery conviction did not, as a matter of law, constitute a firearms conviction within the meaning of 8 U.S.C. § 1251(a)(2)(C) and, consequently, he was eligible to seek a waiver of deportability under § 212(c) of the INA, 8 U.S.C. § 1182(c). ¹ IJ Order at 2. The IJ found petitioner deportable under both 8 U.S.C. § 1251(a)(2)(A)(iii) and § 1251(a)(2)(C) and, therefore, held that petitioner was ineligible to seek a waiver of deportability. IJ Order at 4-5.

On appeal, the BIA agreed with the IJ's decision. The BIA held that Matter of P-F-, Int. Dec. No. 3201, 1993 WL 233119 (B.I.A.1993), was controlling. BIA order at 3. In Matter of P-F-, the BIA held that the alien had been convicted of two offenses within the contemplation of § 1251(a)(2)(C) where one of the two offenses, first degree robbery, required as an element the carrying of a "firearm or other deadly weapon," and the other offense, first degree burglary, required as an element being armed with "explosives or a dangerous weapon." 1993 WL 233119, at * 2. Moreover, in Matter of P-F-, the criminal information in the petitioner's record of conviction indicated that he had committed each of his offenses while armed with a firearm. Id. at * 2-3. Upon comparing Matter of P-F- to the present case, the BIA opined "[a]lthough the cases do have some differences, we do not find that any of the distinguishing features highlighted by [petitioner] require us to reconsider our conclusions in that case." BIA order at 4. The BIA further explained:

[petitioner's] conviction record in this case clearly indicates the use of a dangerous weapon, a revolver. It is well established that a record of conviction includes the charge, the indictment, the plea, the verdict, and the sentence.... The criminal information or complaint is part of the conviction record and we may rely on it in making our decision. Use of the conviction record does not run the risk of re-litigating the criminal case, as feared by [petitioner].

Id. at 4-5 (citations and footnote omitted). Accordingly, the BIA dismissed petitioner's appeal. Id. at 5. Petitioner sought review in this court of the BIA's decision, and we now affirm.

Discussion

Petitioner argues that the BIA erred in holding that his conviction for aggravated robbery constitutes a firearms offense within the meaning of 8 U.S.C. § 1251(a)(2)(C). He maintains that, to qualify under § 1251(a)(2)(C), the offense must have as an essential element the use, sale, possession, etc., of a firearm. Petitioner argues that, because the offense for which he was convicted has as an essential element the use of a dangerous weapon or the infliction of bodily harm, but not the use of a firearm per se, his conviction does not satisfy § 1251(a)(2)(C) as a matter of law. In support of his position, petitioner cites Matter of Lopez-Amaro, Int. Dec. No. 3202, 1993 WL 256810 (B.I.A.1993) (holding that 8 U.S.C. § 1251(a)(2)(C) applies where an alien has been convicted for immigration purposes and the use of a firearm is deemed to be an element or lesser included offense of the crime of conviction), aff'd, 25 F.3d 986 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1093, 130 L.Ed.2d 1062 (1995). Petitioner also argues that his position is consistent with the "categorical" approach to statutory interpretation favored by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In Taylor v. United States, the Supreme Court addressed the meaning of a sentencing enhancement statute, 18 U.S.C. § 924(e), which refers to past convictions for "violent felon[ies]," which, in turn, includes "burglary." Petitioner argues that the Supreme Court relied on the use of the word "conviction" in § 924(e) to hold that the statute required a categorical analysis, which focuses on the elements of the relevant offense, not the specific details of a particular defendant's criminal conduct. Petitioner argues that the same reasoning should apply in interpreting § 1251(a)(2)(C), because that statute refers to persons "convicted of" using a "firearm." Petitioner maintains that, because he was charged under a state statute which technically refers more broadly to "weapons" rather than "firearms," he is not deportable under § 1251(a)(2)(C) under the reasoning in Taylor v. United States. Finally, petitioner argues, the fact-specific standard employed by the BIA would, in many instances, require an immigration judge to engage in an elaborate fact-finding process, which would be both impractical and contrary to Congress's intent.

We review an agency's legal determinations de novo, according substantial deference to the agency's interpretation of the statutes and regulations it administers. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-44, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). The controlling...