Petition for Review of an Order of the Board of Immigration Appeals.
DONALD EFREN FRANCO-CASASOLA, Petitioner, Pro se, La Vergne, TN.
For ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent: Bryan Stuart Beier, Senior Litigation Counsel, Tangerlia Cox, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC; Julie Marie Iversen, Trial Attorney, U.S. Department of Justice, Civil Division/OIL, Washington, DC.
Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges. GRAVES, Circuit Judge, dissenting.
ON PETITION FOR PANEL REHEARING
LESLIE H. SOUTHWICK,
Donald Efren Franco-Casasola's petition for panel rehearing is DENIED. We withdraw our prior opinion of March 6, 2014, and substitute the following.
The Board of Immigration Appeals (" BIA" ) determined that Franco-Casasola was ineligible for cancellation of removal due to his conviction of an aggravated felony. In our prior panel opinion, we concluded the BIA did not err in determining that his statute of conviction was divisible. We applied the modified categorical approach to decide he had been convicted of an aggravated felony. In his petition for rehearing, Franco-Casasola contends that under the recent Supreme Court authority, it was error to conclude that his statute of conviction was divisible. See Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). We disagree. Accordingly, we DENY the petition for review. We substitute the following opinion to explain the Court's holding in Descamps.
FACTUAL AND PROCEDURAL BACKGROUND
Franco-Casasola, a native and citizen of Guatemala, was admitted as an immigrant in Los Angeles, California, on May 29, 1992. On June 6, 2011, the Department of Homeland Security (" DHS" ) issued a notice to appear alleging that on April 1, 2011, Franco-Casasola was convicted of the fraudulent purchase of firearms for export in violation of 18 U.S.C. § 554(a). The notice alleged he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, namely " illicit trafficking in firearms." See 8 U.S.C. § 1101(a)(43)(C). Franco-Casasola denied the charges of removability and filed an application for cancellation of removal. DHS responded by contending he was ineligible for cancellation of removal because of his conviction for an aggravated felony. See 8 U.S.C. § 1229b(a).
The Immigration Judge (" IJ" ) held an evidentiary hearing. DHS submitted the indictment charging Franco-Casasola with conspiracy to purchase and export firearms and ammunition to drug cartels in Guatemala in violation of Section 554(a). Franco-Casasola pled guilty to buying five semi-automatic pistols knowing they were intended for export to Guatemala. The IJ decided that Franco-Casasola's conviction under Section 554(a) did not constitute the aggravated felony of illicit trafficking in firearms, making him eligible for discretionary relief from removal. It then determined, after having also heard testimony of Franco-Casasola's permanent resident status, work history, and family ties to the United States, that his case merited a
favorable exercise of discretion and granted his application for cancellation of removal. DHS appealed to the BIA.
The BIA disagreed with the IJ. It concluded that Franco-Casasola's conviction under Section 554(a) did constitute the aggravated felony of illicit trafficking in firearms, thereby making cancellation of removal unavailable. Franco-Casasola timely petitioned for review, and we denied his petition, agreeing with the conclusion of the BIA. We now consider Franco-Casasola's petition for rehearing of our prior opinion.
Generally, this court reviews only the final decision of the BIA. Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). The BIA's determination that an alien is ineligible for cancellation of removal is a question of law we review de novo. Vasquez-Martinez v. Holder, 564 F.3d 712, 715 (5th Cir. 2009). While we give deference to the BIA's interpretation of immigration statutes, we review de novo the BIA's determination of whether a particular state or federal crime qualifies as an aggravated felony. Id. at 717; Patel v. Mukasey, 526 F.3d 800, 802 (5th Cir. 2008).
An alien is eligible to seek discretionary cancellation of removal if he has been a lawful permanent resident for at least five years, has resided in the United States continuously for seven years after having been admitted under any status, and has not been convicted of an aggravated felony. 8 U.S.C. § 1229b(a). An alien seeking cancellation of removal has the burden of showing by a preponderance of the evidence " that he is not an aggravated felon and is therefore statutorily eligible for relief." Vasquez-Martinez, 564 F.3d at 715.
The question presented on appeal is how to determine whether a prior offense qualifies as an aggravated felony. We start with the categorical approach in making that determination. Larin-Ulloa v. Gonzales, 462 F.3d 456, 463 (5th Cir. 2006). Using this approach, the court " refer[s] only to the statutory definition of the crime for which the alien was convicted . . . and ask[s] whether that legislatively-defined offense necessarily fits within the INA definition of an aggravated felony." Id. (citations omitted). The statute under which Franco-Casasola was convicted provides:
Whoever fraudulently or knowingly exports or sends from the United States, or attempts to export or send from the United States, any merchandise, article, or object contrary to any law or regulation of the United States, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise, article or object, prior to exportation, knowing the same to be intended for exportation contrary to any law or regulation of the United States, shall be fined under this title, imprisoned not more than 10 years, or both.
18 U.S.C. § 554(a). This unusual criminal statute depends on there being other laws or regulations that make unlawful the specific actions taken. As we will explain, the relevant elements of those other laws and regulations will also be included in an indictment and the fact-finder will need to determine they were committed. The aggravated felonies listed in the Immigration and Nationality Act include " illicit trafficking in firearms or destructive devices. . . ." 8 U.S.C. § 1101(a)(43)(C). The government does not argue that we should also examine the other statute and regulations incorporated into this specific indictment and apply the categorical approach to the entirety. In any event, the categorical
approach does not answer whether Franco-Casasola's conviction was for the aggravated felony of illicit trafficking in firearms.
We turn to the modified categorical approach. Larin-Ulloa, 462 F.3d at 464. This alternative requires that the statute of conviction be divisible. Id. When a statute of conviction is divisible, the modified categorical approach allows examination of " the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented" in addition to the language of the statute of conviction to determine if a prior conviction constitutes an aggravated felony. Id. (citations and quotations omitted).
The Supreme Court has never addressed a statute of conviction that depends on other statutes and regulations to provide the specific elements of the offense charged. We conclude the Court would not declare that Congress's method of defining a crime under Section 554(a) makes the modified categorical approach inapplicable. Indeed, its application is straightforward. The approach can apply if we remain loyal to the central tenet of divisibility analysis of examining the statutorily provided elements of the offense. Only those elements may be used to form the relevant generic offense:
The modified approach thus acts not as an exception [to the categorical approach], but instead as a tool. It retains the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach's basic method: comparing those elements with the generic offense's.
Descamps, 133 S.Ct. at 2285. Section 554(a) criminalizes actions that are contrary to other laws and regulations. Once specifically identified in an indictment, those laws and regulations can also be the subject of the modified categorical approach. We will remain focused on the statutory elements of the offense charged and not on the facts of the offense committed.
The IJ and the BIA disagreed on the issue of whether Section 554(a) is divisible for purposes of application of the modified categorical approach. The BIA determined that Section 554(a) was divisible, relying on one of its earlier decisions and explaining that its methodology for analyzing whether a statute of conviction is divisible varies from the analysis this court uses. See Matter of Lanferman, 25 I. & N. Dec. 721, 725 (BIA 2012). In Lanferman, the BIA determined that in the immigration context, divisibility should be permitted in " all statutes of conviction . . . regardless of their structure, so long as they contain an element or elements that could be satisfied either by removable or non-removable conduct." Id. at 727 (citations omitted). In selecting this broad methodology for determining divisibility, the BIA specifically rejected as too formulaic this Court's ...