Quezada-Luna, Miguel v. Gonzales, Alberto R. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2186
MIGUEL QUEZADA-LUNA,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A74-311-495
____________
SUBMITTED NOVEMBER 21, 2005Œ—DECIDED MARCH 3, 2006
____________
Before RIPPLE, MANION, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Miguel Quezada-Luna is a native
and citizen of Mexico who became a lawful permanent
resident of the United States in 1997. In March 2003 he
was convicted of aggravated discharge of a firearm, 720
ILCS 5/24-1.2(a)(1). Based on that conviction, an immigra-
tion judge found Quezada-Luna removable under 8 U.S.C.
Œ
This court previously granted the petitioner’s unopposed motion
to waive oral argument. Thus, the petition for review is submitted
on the briefs and the record. See FED. R. APP. P. 34(f); Cir. R.
34(e).
2 No. 05-2186
§ 1227(a)(2), reasoning that the crime was both a firearm
offense, see 8 U.S.C. § 1227(a)(2)(C), and an aggravated
felony, 8 U.S.C. § 1227(a)(2)(A)(iii). On appeal to the Board
of Immigration Appeals, Quezada-Luna conceded remov-
ability but argued that his offense was not a “crime of vio-
lence,” as that term is defined in 8 U.S.C. § 1101(a)(43)(F)
(referring back to 18 U.S.C. § 16(b)). The reason he did
so was because a conviction for an aggravated felony
will apparently permanently preclude him from applying for
readmission to the United States, at least without
the special permission of the Attorney General. See 8 U.S.C.
§ 1182(a)(9)(A)(ii), (iii). If the only ground for his removal is
the firearm offense, in contrast, the bar on applying for
readmission lasts only ten years. The BIA upheld the
removal order on both grounds, finding that the aggravated
discharge of a firearm under the Illinois statute of convic-
tion is a crime of violence and thus an aggravated felony.
Quezada-Luna filed a timely petition for review from that
decision.
I
Before we turn to the merits of Quezada-Luna’s petition,
we must address a jurisdictional issue that has come to our
attention. One way or the other, Quezada-Luna will
be removed from the United States; the question is whether
he must wait until ten years has elapsed before litigating
the question whether his Illinois conviction was for a “crime
of violence” and hence an aggravated felony, or if it is ripe
for decision now.
In our view, now is the proper time to reach the issue.
What Quezada-Luna is asking us to decide, in effect, is how
severe a disability the current BIA order imposes on him.
See Patel v. City of Chicago, 383 F.3d 569, 572 (7th Cir.
2004) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148
(1967)) (stating that the ripeness doctrine, in part, prevents
No. 05-2186 3
courts from addressing a matter until the challenging
parties are affected “in a concrete way”). Nothing can nor
will happen over the next ten years that will change the
nature of the Board’s order. Quezada-Luna’s prior Illinois
conviction will not undergo a metamorphosis from one that
might be characterized as an aggravated felony to one that
should not be viewed that way. It is what it is today. Cf.
Simmonds v. INS, 326 F.3d 351, 360 (2d Cir. 2003) (dis-
missing appeal for lack of ripeness because of uncertainty
over “whether or when” the INS would execute a removal
order against the petitioner); United States v. Schoenborn,
4 F.3d 1424, 1434 (7th Cir. 1993) (dismissing appeal for
lack of ripeness where defendant sought to challenge the
effect that a potential—and not yet awarded—revocation of
his supervised release would have on the length of his
sentence). We would not for a moment regard as unripe a
criminal defendant’s challenge to a sentence on the ground
that the district court should not have added a two-level
offense level enhancement for obstruction of justice, under
§ 3C1.1 of the U.S. Sentencing Guidelines, just because the
defendant concedes that he will be serving some lower
sentence even if his challenge is successful. We see no
reason to treat the question of the duration of a prohibi-
tion on readmission to the United States any differently.
We note as well that the REAL ID Act, Pub. L. No. 109-
13, 119 Stat. 231 (2005), has eliminated any further
question about our jurisdiction to review this issue. Until
its passage, the Immigration and Nationality Act (INA)
“expressly preclude[d] the courts of appeals from exercising
‘jurisdiction to review any final order of removal against
any alien who is removable by reason of’ a conviction for
certain criminal offenses,” including any aggravated felony
or firearm offense. Calcano-Martinez v. INS, 533 U.S. 348,
350 (2001) (citing 8 U.S.C. § 1252(a)(2)(C)). All that could be
reviewed was whether the earlier conviction was properly
characterized as an aggravated felony. See, e.g., Bosede v.
4 No. 05-2186
Ashcroft, 309 F.3d 441, 445-56 (7th Cir. 2002); Yang v. INS,
109 F.3d 1185, 1192 (7th Cir. 1997). As we noted in Ramos
v. Gonzales, 414 F.3d 800 (7th Cir. 2005), “[t]he REAL ID
Act has changed all of that. It amended INA § 242(a) to
permit the courts of appeals on a proper petition for review
to consider constitutional claims and questions of law. See
REAL ID Act § 106(a)(1)(A)(iii), amending 8 U.S.C.
§ 1252(a)(2) by adding a new subpart (D). This amendment
was effective on the date of the enactment of the statute,
May 11, 2005, and applies to all appeals from removal
orders ‘issued before, on, or after the date of enactment.’
REAL ID Act § 106(b).” 414 F.3d at 802. There is thus no
jurisdictional bar that prevents us from addressing the
issue Quezada-Luna has presented.
II
As we noted earlier, Quezada-Luna conceded before the
Board, and he continues to concede here, that he is remov-
able under § 1227(a)(2)(C), the firearms provision. He
argues here that the Board erred only in holding that the
aggravated discharge of a firearm is a crime of violence. We
have jurisdiction because the proper characterization of an
offense is a question of law. See 8 U.S.C. § 1252(a)(2)(D);
Hamid v. Gonzales, 417 F.3d 642, 645 (7th Cir. 2005);
Gattem v. Gonzales, 412 F.3d 758, 762-63 (7th Cir. 2005);
see also Ramirez-Molina v. Ziglar, No. 03-50596, 2006 WL
62862, at *4 (5th Cir. Jan. 12, 2006), Elia v. Gonzales, 431
F.3d 268, 271-72 (6th Cir. 2006); Schroeck v. Gonzales, 429
F.3d 947, 951 (10th Cir. 2005).
The INA defines “crime of violence” by reference to 18
U.S.C. § 16. That section reads as follows:
The term “crime of violence” means—
(a) an offense that has as an element the use,
attempted use, or threatened use of physical force
against the person or property of another, or
No. 05-2186 5
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used
in the course of committing the offense.
See Leocal v. Ashcroft, 543 U.S. 1, 8-9 (2004); Solorzano-
Patlan v. INS, 207 F.3d 869, 875 n.10 (7th Cir. 2000); see
also Lisbey v. Gonzales, 420 F.3d 930, 932-33 (9th Cir.
2005); Chery v. Ashcroft, 347 F.3d 404, 406-07 (2d Cir.
2003). The physical force must be “violent in nature—the
sort that is intended to cause bodily injury, or at a mini-
mum likely to do so.” Flores v. Ashcroft, 350 F.3d 666, 672
(7th Cir. 2003); see also Lisbey, 420 F.3d at 932; Chery, 347
F.3d at 407-08.
Applying this definition, the Board concluded that
aggravated discharge of a firearm, as charged in Quezada-
Luna’s case, qualifies as a crime of violence under both
§ 16(a) and § 16(b). We see nothing to criticize in that
decision. It is undisputed that Quezada-Luna was convicted
under subsection (a)(1) of 720 ILCS 5/25-1.2, which says
that the offense of aggravated discharge of a firearm is
committed whenever a person knowingly or intentionally
“[d]ischarges a firearm at or into a building he or she knows
or reasonably should know to be occupied.” This both has as
an element the “use, attempted use, or threatened use of
physical force against the person or property of another”
and describes conduct that presents a substantial risk that
physical force against the person or property of another may
be used.
Illinois decisions reinforce our conclusion. The state
courts have made it evident that the “discharge” element of
§ 5-24-1.2(a) involves the use of physical force. See, e.g.,
People v. Boyd, 825 N.E.2d 364, 370 (Ill. App. Ct. 2005)
(describing the offense as a “forcible felony”); People v.
Toney, 758 N.E.2d 138, 145-46 (Ill. App. Ct. 2003). Those
decisions are consistent with the common-sense notion that
6 No. 05-2186
firing a gun is a use of physical force (indeed, deadly force).
See, e.g., Blanford v. Sacramento County, 406 F.3d 1110,
1115 n.9 (9th Cir. 2005) (“There is no question in this case
that the deputies’ firing of their guns at [plaintiff] consti-
tuted deadly force.”); Garcia v. City of Boston, 253 F.3d 147,
149-50 (1st Cir. 2001) (upholding district court’s finding
that prison guards’ shooting of violent prisoner was justifi-
able “use of force”); Maravilla v. United States, 60 F.3d
1230, 1233 (7th Cir. 1995) (classifying police officers’
shooting of suspect’s father as “use of deadly force”).
Contrary to what Quezada-Luna implies, this court did
not hold in United States v. Jaimes-Jaimes, 406 F.3d 845(7th Cir. 2005), that discharging a firearm does not in-
volve physical force. Quite the opposite: in Jaimes-Jaimes
we explicitly recognized that the Wisconsin offense of
“discharging a firearm into a vehicle or building,” see Wis.
Stat. § 941.20(2)(a), “requires that the defendant use force
by shooting a gun.” 406 F.3d at 850. Jaimes-Jaimes there-
fore undermines rather than assists Quezada-Luna’s
position.
The Board reasonably concluded that the Illinois con-
viction in this case was a “crime of violence” for purposes of
the immigration laws, see 8 U.S.C. §§ 1227(a)(2)(A)(iii)
(aggravated felony) and 1101(a)(43)(F) (defining “aggra-
vated felony” to include a “crime of violence”). We there-
fore DENY Quezada-Luna’s petition for review.
No. 05-2186 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-3-06