Interim Decision #3201

Interim Decision #3201

MATTER OF P-FIn Deportation Proceedings

A-24716046

Decided by Board June 9, 1993

An alien convicted of the first degree felonies of armed burglary and robbery with a

firearm under sections 810.02 and 812.13 of the Florida Statutes was convicted of

firearm offenses for the purpose of applying section 241(a)(2)(C) of the Immigration and

Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. III 1991), where the use of a firearm

was an essential element of the crimes, i.e., the use of a firearm elevated the crimes to

first degree felonies and triggered a mandatory minimum sentence as distinguished from

a statutory sentence enhancement.

CHARGE:

Order: Act of 1952—Sec. 241(a)(2)(C) [8 U.S.C. § 1251(a)(2)(C)I—Convicted of firearms violation

ON BEHALF OF SERVICE:

ON nrnAts, OF RESPONDENT:

Patricia S. Wihnyk, Esquire

Graciela G. Garza

General Attorney

Florida Institutional Legal

Services,. Inc.

925 N.W. 56th Terrace, Suite A

Gainesville, Florida 32605-6413

BY: Milhollan, Chairman; Morris and Vacca, Board Members. Dissenting Opinion:

Dunne and Heilman, Board Members.

The respondent appeals from a decision dated October 22, 1992, in

which the immigration judge found the respondent deportable as

charged and ineligible for relief from deportation and ordered hint

deported to Haiti. The appeal will be dismissed. The request for oral

argument is denied.

The respondent is a native and citizen of Haiti who entered the

United States without inspection in November 1980. On August 28,

1987, his status was adjusted to that of a lawful permanent resident.'

According to section 202(d) of the Immigration Reform and Control Act of 1986,

Pub. L No. 99-603, 100 Stat. 3359, 3404-05, as amended by section 2(i) of the

Immigration Technical Corrections Amendments of 1988, Pub. L. No. 100-525, 102

Stat. 2609, 2612, the Attorney General established a record of admission for permanent

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Interim Decision #3201

On April 25, 1991, the respondent was convicted of armed burglary of

a dwelling with a handgun or pistol and armed robbery with a firearm

in violation of sections 810.02 and 812.13 of the Florida Statutes. On

April 13, 1992, the Immigration and Naturalization Service issued an

Order to Show Cause and Notice of Hearing (Form I-221) against the

respondent, charging him with deportability under section

241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C.

§ 1251(a)(2)(C) (Supp. III 1991), as an alien convicted of a firearm

offense. At a deportation hearing on October 22, 1992, the respondent,

through counsel, admitted the allegations in the Order to Show Cause,

denied deportability, and sought relief from deportation in the form of

asylum, withholding of deportation, and a waiver of inadmissibility

under section 212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. III 1991).

The immigration judge found the respondent deportable as charged

and ineligible for the requested relief, giving rise to the instant appeal.

On appeal, the respondent challenges his deportability and argues

that his conviction does not preclude him from seeking section 212(c)

relief or asylum.

We will first address whether the respondent has been convicted of

a firearm offense. Section 241(a)(2)(C) of the Act provides for the

deportability of 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).

Robbery with a firearm is defined under section 812.13 of the

Florida Statutes as follows, in pertinent part:

(1) "Robbery" means the taking of money or other property which may be the

subject of larceny from the person or custody of another, with intent to either

permanently or temporarily deprive the person or the owner of the money or other

property, when in the course of the taking there is the use of force, violence, assault,

or putting in fear.

(2)(a) If in the course of committing the robbery the offender carried a firearm or

other deadly weapon, then the robbery is a felony of the first degree ...

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Fla. Stat. Ann. § 812.13 (West 1993).

Burglary with a firearm is defined as follows under section 810.02 of

the Florida Statutes, in pertinent part:

(1) "Burglary" means entering or remaining in a structure or a conveyance with

the intent to commit an offense therein, unless the premises are at the time open to

the public or the defendant is licensed or invited to enter

or remain.

residence as of January 1, 1982, for Cuban and Haitian aliens granted adjustment of

status pursuant to the provisions of section 202.

Interim Decision #3201

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term

of years not exceeding life imprisonment or as provided ... if, in the course of

committing the offense, the offender:

(b) Is armed, or arms himself within such structure or conveyance, with

explosives or a dangerous weapon.

Fla. Stat. Ann. § 810.02 (West 1992).

The record reflects that the respondent was charged with burglarizing a home and committing armed robbery within that home.

According to the criminal information, the respondent was armed with

a handgun and/or pistol during the commission of the armed burglary

of a dwelling and was armed with a firearm during the commission of

the armed robbery.2 He was convicted of the first degree felonies of

armed burglary of a dwelling under Florida Statutes section 810.02

and armed robbery under section 812.13.

The respondent's use of a firearm during the commission of the

robbery and burglary triggered the application of section 775.087(2)(a)

of the Florida Statutes, which provides for a 3 year mandatory

minimum sentence for "[a]ny person who is convicted of ... murder,

sexual battery, robbery, [or] burglary ... and who had in his

possession a 'firearm."

The respondent contends that he has been convicted of violating

general criminal statutes, i.e., armed robbery and burglary, and that

firearm use is not an element of these offenses. In support of his

proposition he cites Matter of Carrillo, 16 I&N Dec. 625 (BIA 1978).

In Matter of Carrillo the Board held that a conviction for unlawful

possession of a firearm during the commission of a felony, to wit:

possession of heroin with intent to distribute, did not constitute a

violation of a law relating to the illicit possession of a narcotic drug.

The respondent also cites in support of his proposition Castaneda de

Esper v. INS, 557 F.2d 79 (6th Cir. 1977), in which an alien convicted

of misprision of a felony, to wit: conspiracy to possess narcotics, was

found not to have committed a violation of a law relating to narcotic

drugs.

The respondent contends that the deadly weapon element in section

812.13 of the Florida Statutes (defining robbery) includes a broader

category of weapons than firearms. The respondent notes that he did

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2 COUnt one of the information specifies that the respondent used a handgun in the

commission of the armed burglary. The armed robbery counts state that the respondent

was armed with a firearm. In the absence of any evidentiary showing by the respondent

that the weapon was an antique firearm, we find that the conviction record establishes

that the respondent used a "firearm," as defined by 18 U.S.C. § 921(a) (1988), in the

commission of the armed robbery. See United States v. Laroche, 723 F.2d 1541 (11th

Cir.), cert. denied, 467 U.S. 1245 (1984).

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Interim Decision #3201

not receive a sentence enhancement for use of a firearm. See Ha. Stat.

Ann. § 775.084 (West 1992). Rather, he was sentenced under section

775.087(2)(a), which provides for a mandatory 3-year minimum

sentence for use of a weapon during a felony. He contends that the

mandatory minimum provision exempts any "felony in which the use

of a weapon or firearm is an essential element," citing section

775.087(1) of the Florida Statutes? Therefore, he asserts, firearm

possession is not an element of his conviction.

The Service argues that the respondent has been convicted of a

firearm offense. The Service points out that the respondent was

convicted of first degree felonies, which reflect use of a dangerous

weapon or explosives for a burglary conviction, and use of a firearm or

other deadly weapon for an armed robbery conviction. In Wallace v.

State, 573 So. 2d 1010 (Ha. 1991), the court found that possession of a

firearm was an essential element of the crime of attempted robbery

with a firearm. Therefore, it held, the defendant was improperly

convicted of possession of a firearm during the commission of a

felony, because the elements of that offense were contained within the

attempted robbery conviction. The Service also cites Williams v. State,

517 So. 2d 681 (Ha. 1988), for the proposition that the 3-year

mandatory minimum sentence provision is limited to persons using a

firearm or destructive device in the commission of the crime.

We find merit in the Service's arguments on appeal. Use of a

firearm or deadly weapon is the element of the respondent's conviction for robbery which elevates it to a first degree offense. See Wallace

v. State, supra. Furthermore, the respondent's conviction record

reflects that he was subject to a 3-year mandatory minimum sentence

for use of a firearm. Such a sentence cannot be imposed unless the

defendant himself used a firearm or destructive device in the

commission of the crime. Fla. Stat. Atm. § 775.087(2)(a) (West 1992);

Sears v. State, 539 So. 2d 1174 (Fla. Dist. Ct. App. 1989) (holding that

absent a specific jury finding that a firearm was used in the

commission of the crime, imposition of the 3-year mandatory

minimum sentence is improper). Imposition of the mandatory minimum sentence is required where the defendant has been convicted of

use of a firearm.

The cases cited by the respondent in support of his contention that

he has not been convicted of a firearm violation are inapposite.

3 Section 775.087(1) of the Florida Statutes provides for a sentence enhancement

whenever a person is charged with a felony, except a felony in which the use of a

weapon or firearm is an essential element, and during the commission of such felony

the defendant carries, displays, uses, threatens, or attempts to use any weapon or

firearm, or during the commission of such felony the defendant commits an

aggravated battery.

Interim Decision #3201

Castaneda de Esper v. INS, supra, and Matter of Carrillo, supra,

involved convictions for misprision of a felony and possession of a

firearm during the commission of a felony, respectively. Those

convictions in and of themselves did not relate to narcotics, but could

be based on any underlying felonious act. Matter of Carrillo, supra, at

626-27. The underlying narcotic-related acts were separate and distinct

from the convictions. In the instant case, the respondent has been

convicted of use of a firearm in the commission of armed burglary and

robbery. The use of a firearm is not in the nature of an underlying

offense, but is instead an element of the offense itself, as reflected in

the elevation of each conviction to the first degree and the triggering of

a mandatory minimum sentence for firearm use under section

775.087(2) of the Florida Statutes.

The mandatory minimum provision at issue in the instant case is

distinguishable from the sentence enhancement provision discussed in

Matter of Rodriguez-Cortes, 20 I&N Dec. 587 (BIA 1992). In that case,

the Board found that the sentence enhancement provision in section

12022(a) of the California Penal Code was not an element of the

offense and could not be imposed where use of a firearm is an element

of the offense. Imposition of a sentence enhancement under section

12022(a) does not create a separate offense under California law, but is

rather an additional punishment imposed on the defendant. Matter of

Rodriguez Cortes, supra, at 590.

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Florida law similarly provides that a sentence enhancement may not

be imposed where firearm use is an element of the offense. Fla. Stat.

Ann. § 775.087(1) (West 1992). However, the mandatory minimum

provision is separate and distinct from the sentence enhancement

provision. Williams v. State, supra; Aikens v. State, 423 So. 2d 593

(Fla. Dist. Ct. App. 1982).

The respondent correctly asserts that section 775.087(1) prohibits

sentence enhancement where the use of a firearm is an essential

element of the offense. However, the respondent was not sentenced

pursuant to that provision, and it is irrelevant to the instant case. We

conclude that the respondent is deportable as charged.

The respondent next argues that he is eligible for section 212(c)

relief notwithstanding his conviction for a firearm offense. The

respondent is ineligible for section 212(c) relief for the reasons stated

in Matter of Montenegro, 20 I&N Dee. 603 (BIA 1992); see also Matter

of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991), affd,

983 F.2d 231 (5th Cir. 1993).

Finally, the respondent contends that his convictions do not

preclude him from seeking asylum. In Matter of Carballe, 19 I&N Dec.

357 (BIA 1986), this Board found that armed robbery under the

Florida Statutes was a per se particularly serious crime. As an alien

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Interim Decision #3201

convicted of a particularly serious crime, the respondent is ineligible

for asylum. 8 C.F.R. § 208.14(c)(1) (1993).

Based on the foregoing, the appeal will be dismissed.

ORDER;

The appeal is dismissed.

DISSENTING OPINION: Michael J. Heilman, Board Member

I respectfully dissent.

In my view, the respondent has not been convicted of any firearms

offense which would bar him from relief under section 212(c) of the

Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. III 1991).

It is undisputed that the respondent was convicted of "Robbery"

under section 812.13 of the Florida Statutes. This statute describes

robbery as the taking of money or other property, "when in the course

of the taking there is the use of force, violence, assault, or putting in

fear." Fla. Stat. Ann. § 812.13(1) (West 1993). Subsection (2)(a) states

that if the robber carried a firearm, then the robbery is "a felony of the

first degree." Fla. Stat. Ann. § 812.13(2)(a) (West 1993).

The respondent argues, I believe correctly, that a conviction for this

offense does not constitute a firearms conviction within the meaning

of section 241(a)(2)(C) of the Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. III

1991). As the respondent states on appeal:

The deadly weapon element of the crimes of both armed robbery and armed burglary

of a dwelling can be any weapon, including a speargun and does not necessarily have

to be a firearm. Heston v. State, 490 So.2d 157 (2d DCA 1986). Therefore use or

possession of a firearm is not an essential element to the crimes of which Respondent

is convicted.

Respondent's brief at page 7.

The information brought against the respondent recites in count II

that the respondent "did unlawfully by force, violence, assault, or

putting in fear, take certain property, to wit: CASH, good and lawful

currency ... and in the course of committing said ROBBERY, carried

a FIREARM, in violation of 812.13 Florida Statutes." By way of

contrast, count V, for which the respondent was not found guilty,

states that the respondent "did unlawfully and feloniously display a

certain firearm, while at said time and place the defendant was

committing a felony, to wit: ROBBERY and/or BURGLARY, as

provided by 812.13 and/or 810.02 Florida Statutes, the possession and

display of said firearm as aforesaid being in violation of 790.07

Florida Statutes." It is clear from the latter count that the State of

Florida knows how to identify and charge a firearms offense, as

distinct from a robbery or burglary offense.

I think that where the majority and I part ways is in its

interpretation that a statutory provision, section 812.13(2)(a), which

categorizes a criminal act by its felony class for purposes of sentencing,

Interim Decision #3201

makes the offense of robbery a "firearms" offense for purposes of the

immigration law. It may well be, as the Florida court held in Wallace v.

State, 573 So. 2d 1010 (Fla. 1991), that possession of a firearm was an

essential element of the crime of attempted robbery with a firearm,

and that Wallace could not be convicted additionally of possession of a

firearm during the commission of a felony. This result flowed from the

general principle that Wallace could not be punished twice for the

same act. The Wallace court, however, did not hold that if Wallace was

convicted of robbery he had also committed a firearms offense. The

majority is holding this, though, because it is finding that if an

individual is convicted of a crime, one of whose elements is common

to another offense, then that crime becomes that other offense.

I believe that it defies common sense to conclude that a conviction

for robbery or burglary or rape or murder becomes a firearms offense

because the individual was not armed with a knife or other weapon

proscribed by law. The Florida law criminalizes the use of violence,

force, assault, or putting in fear. This criminal act is complete without

the use of a firearm, or indeed, any weapon. If a firearm is used, then

the punishment for the act of violence, the robbery, may be heightened. This being so, then the distinction the majority makes between

this situation and the so called sentence enhancement statutes is quite

meaningless. In both this case, and in the California case discussed in

Matter of Rodriguez-Cortes, 20 I&N Dec. 587 (BIA 1992), the use of a

firearm did not define the conviction as a firearms offense, it only

defined the punishment. The net result of this distinction that the

majority attempts to make will be that where individuals with

identical convictions and sentences apply for section 212(c) waivers,

one will have committed a firearms offense and one will have not. This

surely cannot be a logical or acceptable result.

For these reasons, I would reverse the immigration judge and

remand the record to allow the respondent to apply for a waiver under

section 212(c) of the Act.

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DISSENTING OPINION: Mary Maguire Dunne, Board Member

I respectfully concur in the foregoing dissent

I do not believe that Congress intended the revision of the statute to

effect different results in similar fact situations due to the language of

the State statute under which an alien stands convicted. Such

inconsistent results will clearly occur under the approach adopted by

the majority.

Moreover, I do not find the respondent to have been convicted of a

firearms offense for the reasons stated in the dissent.