FLORES-ABARCA

Cite as 

 (BIA 2017)                               Interim Decision #3886




         Matter of Rogelio FLORES-ABARCA, Respondent
                              Decided March 3, 2017

                          U.S. Department of Justice
                   Executive Office for Immigration Review
                       Board of Immigration Appeals


  The crime of transporting a loaded firearm in violation of title 21, section 1289.13 of
the Oklahoma Statutes is categorically a firearms offense under section 237(a)(2)(C) of
the Immigration and Nationality Act, 

(a)(2)(C) (2012), even though the
term “transporting” is not included in the Act, because section 237(a)(2)(C) is broadly
construed to encompass all types of firearms offenses.
FOR RESPONDENT: Arthur Campbell Cooke, Esquire, Tulsa, Oklahoma
FOR THE DEPARTMENT OF HOMELAND SECURITY: Lynn G. Javier, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, WENDTLAND, and GREER, Board Members.
PAULEY, Board Member:


    In a decision dated December 1, 2015, an Immigration Judge found the
respondent removable under section 212(a)(6)(A)(i) of the Immigration and
Nationality Act, 

(a)(6)(A)(i) (2012), as an alien who is
present in the United States without being admitted or paroled after
inspection, and denied his application for cancellation of removal under
section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2012). The
respondent has appealed from that decision. The appeal will be dismissed.
    The respondent is a native and citizen of Mexico who entered the
United States without inspection in 1988. The record reflects that he was
convicted on January 20, 2004, of transporting a loaded firearm in violation
of title 21, section 1289.13 of the Oklahoma Statutes. That section
provides in relevant part that “it shall be unlawful to transport a loaded
pistol, rifle or shotgun in a landborne motor vehicle over a public highway
or roadway.”
    At a hearing before the Immigration Judge, the respondent conceded
that he is removable, but he applied for cancellation of removal. The
Immigration Judge determined that the respondent is ineligible for that
relief pursuant to section 240A(b)(1)(C) of the Act because he has been
convicted of a firearms offense under section 237(a)(2)(C) of the Act,

(a)(2)(C) (2012).

                                          922
Cite as 

 (BIA 2017)                               Interim Decision #3886




   Section 237(a)(2)(C) of the Act provides as follows:

       Any alien who at any time after admission 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, United States Code) in
     violation of any law is deportable.

(Emphases added.) The respondent argues that the crime of transporting a
firearm does not include “possessing” or “carrying” and that Congress did
not intend the transportation of a loaded firearm to be an offense within the
scope of section 237(a)(2)(C). Whether transporting a loaded firearm under
Oklahoma law is a firearms offense under the Act is a question of law that
we review de novo. 

(d)(3)(ii) (2016).
    Section 237(a)(2)(C) uses the expansive term “any” and sets forth a
“comprehensive list of gerunds [that] captures all varieties of conduct
relating to firearms transactions.” Hall v. INS, 

 (4th Cir.
1999). A plain reading of the statute makes “clear that Congress intended
[it] to embrace the entire panoply of firearms offenses.” Valerio-Ochoa
v. INS, 

 (9th Cir. 2001).
    The United States Court of Appeals for the Fifth Circuit, in whose
jurisdiction this case arises, has not addressed the breadth of section
237(a)(2)(C). However, other Federal courts of appeals have expressed the
view that “Congress intended the provision to apply broadly.” Malilia
v. Holder, 

 (9th Cir. 2011); see also Awad v. Gonzales,

, 725−27 (8th Cir. 2007) (approving the Board’s broad
interpretation of section 237(a)(2)(C)). Specifically, the Second and Fourth
Circuits have concluded that section 237(a)(2)(C) “is ‘exceedingly broad’
and ‘evinces an expansive purpose—to render deportable those aliens that
commit firearms offenses of any type.’” Kuhali v. Reno, 

(2d Cir. 2001) (quoting Hall, 

).
    Further, the terms “possessing” and “possess” in section 237(a)(2)(C) of
the Act include constructive possession of a firearm. Aybar-Alejo v. INS,

 (1st Cir. 2000) (“Constructive possession of an object
occurs when an individual exercises dominion and control over such object
even though it is not within his immediate physical possession.”). The
respondent knowingly and willfully transported a firearm in his vehicle.
Okla. Unif. Jury Instructions CR 6-37A (stating that a person must
“knowingly” and “willfully” transport a loaded firearm to be convicted
under section 1289.13). Therefore, he necessarily had constructive
“possession” of the firearm for purposes of section 237(a)(2)(C). See
United States v. Bass, 

 (1971) (noting that “virtually all

                                          923
Cite as 

 (BIA 2017)                      Interim Decision #3886




transportations . . . involve an accompanying possession”); United States
v. Richards, 

 (8th Cir. 1992) (stating that “the ordinary
meaning of the term ‘transport’ . . . involv[es] an element of possession”);
cf. Malilia, 

 (stating that possession of a firearm “is a
necessary part” of its delivery); Kuhali, 266 F.3d at 104−05 (holding that
exporting firearms “necessarily entails some degree of possession”).
    Moreover, it would be illogical to hold that unlawful possession of a
loaded firearm would fall within the scope of section 237(a)(2)(C) but that
unlawfully transporting the same weapon would not. See Malilia, 

 (“Congress did not write the law so that an alien who unlawfully
possesses a firearm may be removed while an alien who possesses a firearm
and then unlawfully delivers that firearm may not be removed.”); Kuhali,

 (stating that “it would be incongruous to read the statute to
encompass” the possession of firearms but not their illegal export). See
generally Matter of Fajardo Espinoza, 

 (BIA 2015)
(stating that the statutory scheme as a whole may require the unambiguous
language of the Act to “yield . . . where absurd or bizarre results would
otherwise ensue”). We therefore conclude that Congress intended the crime
of transporting a loaded firearm to fall within the scope of section
237(a)(2)(C) of the Act.
    The legislative history of section 237(a)(2)(C) of the Act supports our
conclusion in this regard. Under former section 241(a)(14) of the Act,

(a)(14) (1988), only the crimes of “possessing or carrying”
a firearm were a basis for deportation. Subsequent legislation expanded the
deportable offenses to the current extensive list of crimes, as well as
attempts and conspiracies to commit them. Immigration and Nationality
Technical Corrections Act of 1994, 

(b), 

, 4311; Immigration Act of 1990, 

(a),

, 5080. As courts have noted, these revisions “stretched the
scope of deportable firearms offenses” and expanded the statute’s “reach.”
Malilia, 632 F.3d at 602−03; see also Hall, 

 (stating that the
“obvious goal of each revision was to expand” the firearms-related grounds
for deportation).
    In light of the “expansive text and history” of section 237(a)(2)(C) of
the Act, we conclude that the crime of transporting a loaded firearm under
Oklahoma law is categorically a firearms offense under the Act. Kuhali,

. We therefore agree with the Immigration Judge that the
respondent’s conviction renders him ineligible for cancellation of removal
under section 240A(b)(1)(C) of the Act. Accordingly, the respondent’s
appeal will be dismissed.
    ORDER: The appeal is dismissed.


                                     924