BIA Reverses Matter of Vasquez-Muniz to Find State Conviction for Possession of Firearm by a Felon Is "Aggravated Felony"

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

BIA REVERSES MATTER OF VASQUEZ-MUNIZ TO FIND STATE CONVICTION FOR POSSESSION OF FIREARM BY A FELON IS "AGGRAVATED FELONY"
Immigrants' Rights Update, Vol. 16, No. 1, February 28, 2002

The Board of Immigration Appeals has issued an en banc ruling reversing its prior decision in Matter of Vasquez-Muniz, Int. Dec. 3440 (BIA 2000). In its first ruling in the case, the BIA concluded that a conviction for possession of a firearm by a felon under section 12021(a)(1) of the California Penal Code is not encompassed within the aggravated felony definition of section 101(a)(43)(E) of the Immigration and Nationality Act, which describes certain offenses related to firearms and explosive devices. Subsequently, the U.S. Court of Appeals for the Ninth Circuit in United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001), decided that, for purposes of enhancement of a criminal sentence, a conviction under CPC section 12021(a) is encompassed within INA section 101(a)(43)(E). In light of that decision, a majority of the BIA decided to reconsider and reverse its earlier decision. The new decision concludes that state and foreign convictions are encompassed within the definition of INA section 101(a)(43)(E).

The BIA's first ruling in this case turned on its conclusion that a conviction under CPC section 12021(a)(1) did not constitute "an offense described in . . . 18 U.S.C. [section] 922(g)(1)," as referenced in the aggravated felony definition of INA section 101(a)(43)(E). 18 U.S.C. section 922(g)(1) is a federal statute that criminalizes possession of a firearm by a felon. It applies to felons who knowingly possess a firearm or ammunition "in or affecting commerce." The BIA noted that the federal statute's interstate commerce requirement is commonly called the "jurisdictional element" because the Commerce Clause of the Constitution was the basis for Congress's enactment of the statute. Because the California statute under which the respondent was convicted did not contain this element, the BIA concluded that it is not "described in" 18 U.S.C. section 922(g)(1) and therefore not encompassed within INA section 101(a)(43)(E).

In Castillo-Rivera, the Ninth Circuit reached the opposite conclusion. The defendant had pled guilty to illegal reentry after deportation, and the issue before the appellate court was whether his conviction prior to the deportation under CPC section 12021(a) was for an aggravated felony such as to warrant an enhanced sentence under federal sentencing guidelines. The court reasoned that few state or foreign firearms statutes have a jurisdictional element requiring an effect on commerce, but the court found that Congress intended the aggravated felony definition to encompass state and foreign convictions. The court therefore concluded that the jurisdictional element is not a requirement of INA section 101(a)(43)(E).

Following the decision in Castillo-Rivera, the Immigration and Naturalization Service filed a motion asking the BIA to reconsider its decision in Vasquez-Muniz, contending that the 30-day deadline on motions to reconsider does not apply to the INS. The BIA did not decide this issue, deciding instead to reconsider the case on its own motion, in light of the decision in Castillo-Rivera and the BIA's own further examination of the statute. The BIA then issued a new decision vacating the previous decision and adopting the reasoning of Castillo-Rivera. The BIA's new decision holds that a conviction under CPC section 12021(a)(1) is encompassed in the aggravated felony definition of INA section 101(a)(43)(E), despite the fact that the state statute does not contain the federal jurisdictional element. Board Member Rosenberg dissented, joined by Members Miller, Brennan, Espenoza, and Osuna, maintaining that the reasoning of the original decision is correct. The dissent would have the BIA acquiesce to Castillo-Rivera in cases arising in the Ninth Circuit but continue to apply the original decision in other circuits.

Matter of Vasquez-Muniz, 23 I. & N. Dec. 207, Int. Dec. #3461 (BIA Jan. 15, 2002).