Vue v. I.N.S., No. 95-2152

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore McMILLIAN, LAY and HANSEN; McMILLIAN
Citation92 F.3d 696
PartiesKao VUE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, District Director, Carl R. Houseman, United States of America, Janet Reno, Attorney General, Respondents.
Decision Date12 August 1996
Docket NumberNo. 95-2152

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.

Page 697

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

Page 698

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...

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20 practice notes
  • Friends of Boundary Waters Wilderness v. Dombeck, Nos. 97-3282
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 7, 1999
    ...we accord "substantial deference to the agency's interpretation of the statutes and regulations it administers." Vue v. INS, 92 F.3d 696, 699 (8th Cir.1996) (citing Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984))......
  • Sokol v. Kennedy, No. 8:97CV51.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • February 22, 1999
    ...must grant " `substantial deference to the agency's interpretation of the statutes and regulations it administers.'" Vue v. INS, 92 F.3d 696, 699 (8th Cir.1996) (citing Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (19......
  • Kuhali v. Reno, PETITIONER-APPELLANT
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 1, 2000
    ...the Board's reading), petition for cert. filed, 69 U.S.L.W. 3791 (U.S. May 16, 2001) (No. 00-1833); Hall, 167 F.3d at 855-56; Vue v. INS, 92 F.3d 696, 699-700 (8th Cir. 1996); Lopez-Amaro, 25 F.3d at 989-90. 3. The Criminal Statute: 22 U.S.C. § 2778 Turning to the nature of Kuhali's offense......
  • Canada v. Gonzales, Docket No. 03-40051-AG.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 18, 2006
    ...guilty plea, or the transcript from the plea proceedings." (citations and quotations omitted) (alterations in original)); Vue v. INS, 92 F.3d 696, 700 (8th Cir.1996) (noting that "`immigration officers and courts, while precluded from considering the evidence, may examine the `rec......
  • Request a trial to view additional results
20 cases
  • Friends of Boundary Waters Wilderness v. Dombeck, Nos. 97-3282
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 7, 1999
    ...we accord "substantial deference to the agency's interpretation of the statutes and regulations it administers." Vue v. INS, 92 F.3d 696, 699 (8th Cir.1996) (citing Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984))......
  • Sokol v. Kennedy, No. 8:97CV51.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • February 22, 1999
    ...must grant " `substantial deference to the agency's interpretation of the statutes and regulations it administers.'" Vue v. INS, 92 F.3d 696, 699 (8th Cir.1996) (citing Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (19......
  • Kuhali v. Reno, PETITIONER-APPELLANT
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 1, 2000
    ...the Board's reading), petition for cert. filed, 69 U.S.L.W. 3791 (U.S. May 16, 2001) (No. 00-1833); Hall, 167 F.3d at 855-56; Vue v. INS, 92 F.3d 696, 699-700 (8th Cir. 1996); Lopez-Amaro, 25 F.3d at 989-90. 3. The Criminal Statute: 22 U.S.C. § 2778 Turning to the nature of Kuhali's offense......
  • Canada v. Gonzales, Docket No. 03-40051-AG.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 18, 2006
    ...guilty plea, or the transcript from the plea proceedings." (citations and quotations omitted) (alterations in original)); Vue v. INS, 92 F.3d 696, 700 (8th Cir.1996) (noting that "`immigration officers and courts, while precluded from considering the evidence, may examine the `rec......
  • Request a trial to view additional results

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