Interim Decision #3189
MATTER OF RODRIGUEZ-CORTES
In Deportation Proceedings
A-35913271
Decided by Board October 19, 1992
(1) The sentence enhancement provision of section 12022(a) of the California Penal
Code, which allows for the imposition of an additional and consecutive term of
imprisonment upon a person convicted of a felony where any one of the principals of
the felony was armed with a firearm, does not create a separate offense, but rather
imposes additional punishment, and therefore does not constitute a conviction under
California law.
(2) An alien, who was convicted of five counts of attempted murder in the second degree
and whose sentence under one count was enhanced pursuant to section 12022(a) of the
California Penal Code because a codefendant was armed with a firearm in the
attempted commission of the felony, has not been convicted of a firearm offense
under California law and is not deportable 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 at any time after entry of a firearm violation.
(3)An alien whose sentence enhancement pursuant to section 12022(a) of the California
Penal Code is not a conviction under California law and who is not deportable under
section 241(a)(2)(C) of the Act, as an alien convicted at any time after entry of a
firearm violation, is eligible to apply for a waiver of inadmissibility under section
212(c) of the Act,
8 U.S.C. § 1182(c) (Supp. III 1991).
CHARGE:
Order: Act of 1952—Sec. 241(a)(2)(A)(iii) [
8 U.S.C. § 1251(a)(2)(A)(iii)j—Convicted of
aggravated felony
Sec. 241(a)(2)(C) [8 U.S.C. § 1251(a)(2)(C)]—Convicted of firearms violation
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Pro se Kee C. Ling
General Attorney
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision dated February 27, 1992, the immigration judge found
the respondent deportable on her own admissions under section
241(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.
§ 1251(a)(2)(A)(iii) (Supp. III 1991), as an alien convicted of an
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Interim Decision #3189
aggravated felony at any time after entry, and under section
241(a)(2)(C) of the Act, as an alien convicted at any time after entry of
a firearm violation. The immigration judge further ordered the
respondent deported from the United States to Mexico. The respondent timely appealed from that decision. The respondent's request for
oral argument before the Board is denied as a matter of discretion. See
8 C.F.R. § 3.1(e) (1992). The appeal will be sustained and the record
will be remanded for further proceedings.
The respondent is a female native and citizen of Mexico, who was
admitted to the United States as an immigrant on November 4, 1977.
On November 9, 1988, the respondent and two other individuals were
principally charged in a five-count information of attempted willful,
deliberate, premeditated murder of five individuals in violation of
sections 664 and 187(a) of the California Penal Code. The respondent
was accused under the name of Ana Cortez, and she was named in all
five counts. The information also alleged in the five counts that the
respondent's codefendant personally used a firearm within the meaning of sections 1203.06(a)(1) and 12022.5 of the California Penal Code
in the commission and attempted commission of the charged offenses,
causing the offenses to become serious felonies pursuant to section
1192.7(c)(8) of the California Penal Code. Additionally, the information stated in special allegations in the five counts that a principal in
the attempted murder offenses was armed with a firearm, namely a
handgun, in the commission and attempted commission of the
offenses, with such arming not being an element of the charged
offenses within the meaning of section 12022(a) of the California
Penal Code.
On June 15, 1989, the respondent was convicted by pleas of nolo
contendere in the Superior Court of California, County of Los Angeles,
of five counts of attempted murder in the second degree, a felony, in
violation of sections 664 and 187(a) of the California Penal Code. The
respondent was sentenced to 5 years in prison for count one with 7-
year concurrent terms for the other four counts. The conviction record
in evidence reflects that the respondent's 5-year sentence for count one
was enhanced by 1 year for a total term of 6 years pursuant to section
12022(a) of the California Penal Code, predicated on a finding that
one of the principal codefendants was armed with a firearm in the
attempted commission of the felony offense.
In an Order to Show Cause, Notice of Hearing, and Warrant for
Arrest of Alien (Form I-221S) dated January 3, 1992, the respondent
was charged with deportability under sections 241(a)(2)(A)(iii) and (C)
of the Act. A hearing commenced before the immigration judge on
February 27, 1992, where the respondent, who was unrepresented by
counsel, admitted the five factual allegations contained in the Order to
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Show Cause. Based on the respondent's admissions and the conviction
record, the immigration judge found her deportable as charged. There
was no issue that the respondent had attained the 7 consecutive years
of lawful permanent residence required for a waiver of inadmissibility
under section 212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. III 1991).
However, the immigration judge found the respondent ineligible to
apply for section 212(c) relief based on the charge of deportability for a
firearm offense under section 241(a)(2)(C) of the Act. The respondent
did not apply for any other relief. On appeal, the respondent contests
only the immigration judge's finding that she is ineligible for a section
212(c) waiver.
In order to determine if the respondent is eligible for a section
212(c) waiver of inadmissibility, we must address the question whether
she is deportable pursuant to section 241(a)(2)(C) of the Act. That
section of the Act provides as follows:
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 destruetivc
device (as defined in section 921(a) of title 18, United States Code) is deportable.
(Emphasis added.)
The United States Court of Appeals for the Ninth Circuit has held that
a section 212(c) waiver of inadmissibility which provides for discretionary relief from exclusion does not apply to the deportation ground
for firearm offenses. See Cabasug v. INS,
847 F.2d 1321 (9th Cir.
1988); see also Matter of (Hernandez-Casillas,
20 I&N Dec. 262 (BIA
1990; A.G. 1991) (holding by the Attorney General that an alien
deportable under section 241(a)(2) of the Act,
8 U.S.C. § 1251(a)(2)
(1988), for entry without inspection is not eligible for a section 212(c)
waiver because there is no comparable ground of exclusion, aff'd,
983
F.2d 231 (5th Cir. 1993); Matter of Wadud,
19 I&N Dec. 182
(BIA 1984); Matter of Grarnados,
16 I&N Dec. 726 (BIA 1979) (finding
that section 212(c) relief is not available to an alien deportable for a
firearm violation as there is no comparable ground of excludability),
affd,
624 F.2d 191 (9th Cir. 1980). Thus, the issue in this case is
whether the respondent was convicted of a firearm violation within the
meaning of section 241(a)(2)(C) of Act so as to preclude her from
eligibility to apply for section 212(c) relief. We do not find that such a
conviction exists here.
An examination of the respondent's conviction record reveals that
1 The Board concurs with the immigration judge's finding that the respondent is
deportable under section 241(a)(2)(A)(iii) of the Act as an alien convicted of an
aggravated felony at any time after entry. See section 101(a)(43) of the Act,
8 U.S.C.
§ 1101(a)(43) (Supp. III 1991); Matter of A-A-,
20 I&N Dec. 492 (BIA 1992).
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her sentence under count one was enhanced by 1 year pursuant to
section 12022(a) of the California Penal Code based on the finding of
the special allegation charged in the information that a principal was
armed with a firearm in the attempted commission of the felony
offense. Section 12022(a) provides in relevant part:
[A]ny person who °is armed with a firearm in the commission or attempted
commissi on of a felony shall, upon conviction of such felony or attempted felony, in
addition and consecutive to the punishment prescribed for the felony or attempted
felony of which he or she has been convicted, be punished by an additional term of
one year, unless such arming is an element of the offense of which he or she was
convicted. This additional term shall apply to any person who is a principal in the
commission or attempted commission of a felony if one or more of the principals is
armed with a firearm, whether or not such person is personally armed with a firearm.
Cal. Penal Code § 12022(a)(1) (West 1992).
Section 12022(a) is clearly only an enhancement provision which
allows for- the imposition of an additional and consecutive term of
imprisonment where any one of the principals of a felony offense was
armed with a firearm, regardless of whether the particular defendant
was persomally armed. The statute also indicates that the act of being
armed with a firearm may not be an element of the charged offense in
order for an additional and consecutive term pursuant to section
12022(a) to be imposed. In examining the increased punishment
language of section 3 of the Deadly Weapons Act, which is now
codified in section 12022, the California Supreme Court held that the
added pumislunent does not create a separate offense, but merely
imposes additional punishment for the felony committed when a
principal was armed with a weapon named in the statute. In re Shull,
146 P.2d 417 (Cal. 1944). The Court of Appeals of California, Third
Appellate District, also specifically held in People v. Smith,
210 Cal.
Rptr. 43 (Cal. Ct. App. 1985), that section 12022(a) does not set forth
a separate offense, but rather constitutes additional punishment for an
offense for which a person is convicted and to which it applies.
In the instant case, a firearm offense was not an element of the
respondent's attempted murder in the second degree conviction under
count one of the information. The respondent only received additional
punishment as a result of the court's finding that a principal
codefendant was armed with a firearm. Thus, the enhancement of her
sentence by section 12022(a) of the California Penal Code was not a
conviction for a firearm offense under California law. Given that the
enhancement by section 12022(a) was not a conviction under California law, it is not a conviction for immigration purposes. We therefore
conclude that the respondent is not deportable under section
241(a)(2)(C) of the Act as an alien convicted at any time after entry of
a firearm -violation. Consequently, she is not barred from applying for
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Interim Decision #3189
section 212(c) relief. Accordingly, the appeal will be sustained and the
record will be remanded to afford the respondent an opportunity to
apply for a waiver of inadmissibility pursuant to section 212(c) of the
Act.
ORDER: The appeal is sustained and the decision of the
immigration judge is reversed insofar as it finds the respondent
deportable under section 241 (a)(2)(C) of the Act and ineligible for
section 212(c) relief, and it orders the respondent deported from the
United States to Mexico.
FURTHER ORDER: The record is remanded to the immigration judge for further proceedings consistent with the foregoing
opinion and for the entry of a new decision.
591
