P-F
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 him 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.1
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 ...
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.
(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.
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
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 (Fla. 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 (Fla. 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.
The cases cited by the respondent in support of his contention that he has not been convicted of a firearm violation are inapposite.
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.
Florida law similarly provides that a sentence enhancement may not be imposed where firearm use is an element of the offense.
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 Dec. 603 (BIA 1992); see also Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991), aff‘d, 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
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,
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.”
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,
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,
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.
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.