Negrete-Rodriguez, P v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-1931 & 06-2938
PABLO NEGRETE-RODRIGUEZ,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petitions for Review of Decisions
of the Board of Immigration Appeals.
No. A14-475-771
____________
ARGUED OCTOBER 30, 2007—DECIDED MARCH 3, 2008
____________
Before MANION, ROVNER, and SYKES, Circuit Judges.
MANION, Circuit Judge. Pablo Negrete-Rodriguez
(“Negrete”) is a Mexican citizen. He was admitted to the
United States as a lawful permanent resident in 1965.
Later, Negrete was convicted of several crimes in Illinois,
including possession of a firearm by a felon. Removal
proceedings were instituted against him in 2001. After a
hearing, the Immigration Judge (“IJ”) determined, among
other things, that Negrete’s Illinois firearms conviction
was an aggravated felony, thus barring Negrete from
eligibility for cancellation of removal, and ordered Negrete
removed to Mexico. The Board of Immigration Appeals
(“Board”) affirmed the IJ’s decision and denied Negrete’s
2 Nos. 06-1931 & 06-2938
motion to reconsider. Because we conclude that the
Board properly categorized Negrete’s Illinois felon-in-
possession conviction as an aggravated felony, we deny
Negrete’s petitions for review.
I.
Negrete entered the United States as a lawful permanent
resident on September 28, 1965, at the age of four. While
in the United States, Negrete compiled an extensive rec-
ord of criminal arrests and convictions beginning in the
early 1980’s and ending in the middle of the next decade.
All of Negrete’s arrests and convictions took place in
Illinois. In 1981, Negrete was arrested four times, including
once for disorderly conduct, another time for unlawful use
of a weapon, and yet another time for theft. In 1982,
Negrete was arrested and convicted of robbery; in 1984,
he was arrested for battery. Negrete was arrested and
convicted again in April 1986, this time for possession
of a controlled substance. He was also arrested in
August 1986 for driving under the influence, leaving the
scene of an accident and failing to report it, failing to have
a valid driver’s license, and driving in the wrong lane.
Negrete added two more arrests to his record for driving
under the influence, once in 1993 and again in 1995, as
well as an arrest for drinking in public in 1994. In 1990,
Negrete was arrested for aggravated assault. Most perti-
nent to this opinion, however, is Negrete’s 1990 convic-
tion for unlawful possession of a weapon by a felon in
violation of 720 ILCS 5/24-1.1(a).1
1
At the time of Negrete’s conviction, that section was desig-
nated as paragraph 24-1.1(a) of chapter 38 of the Illinois Re-
vised Code.
Nos. 06-1931 & 06-2938 3
In 2001, Negrete left the United States to visit Mexico.
Upon his return, the Department of Homeland Security
(“DHS”)2 initiated removal proceedings against Negrete,
charging him in the Notice to Appear (“Notice”) as an
arriving alien who was subject to removal based on
§§ 212(a)(2)(A)(i)(I)-(II) of the Immigration and Nationality
Act (“INA”), codified at 8 U.S.C. §§ 1182(a)(2)(A)(i)(I)-(II),
for crimes involving moral turpitude and a controlled
substance. The Notice listed Negrete’s 1982 conviction
for robbery, his 1986 conviction for possession of a con-
trolled substance, and his 1990 conviction for unlawful
possession of a weapon by a felon. At Negrete’s first
appearance in immigration court on September 5, 2002,
DHS noted that the Notice would have to be amended,
as it incorrectly listed Negrete as an arriving alien instead
of a lawful permanent resident, and also requested a
continuance. The IJ granted DHS’s request without objec-
tion from Negrete and continued Negrete’s hearing
until January 9, 2003.
The hearing was continued several more times after the
January 9, 2003, date. In the interim, the government
supplemented the Notice to reflect Negrete’s status as a
lawful permanent resident rather than an arriving alien. In
addition, the government revised its charges, alleging,
among other things, that Negrete was removable under
§ 237(a)(2)(A)(iii) of the INA, codified at 8 U.S.C.
2
At the time of Negrete’s attempted reentry, the Immigration
and Naturalization Service was in charge of prosecuting
Negrete’s removal proceedings. On March 1, 2003, the INS
ceased to exist as an independent agency and DHS assumed
its functions. For the sake of clarity, we will refer only to DHS
in this opinion.
4 Nos. 06-1931 & 06-2938
§ 1227(a)(2)(A)(iii), for having been convicted of two
aggravated felonies, the first an offense involving a con-
trolled substance as defined in § 101(a)(43)(B) of the INA,
codified at 8 U.S.C. § 1101(a)(43)(B); and the second a
firearms-related offense as defined in § 101(a)(43)(E)(ii)
of the INA, codified at 8 U.S.C. § 1101(a)(43)(E)(ii). While
the government was amending its charges, Negrete filed an
application for a waiver under the former § 212(c) of the
INA3 and applied for cancellation of removal as well.
On February 7, 2005, the IJ held a hearing and found,
among other things, that DHS had proved the two
aggravated-felony grounds for removal by clear and
convincing evidence. Relying on the Board’s finding in
In re Yanez-Garcia, 23 I&N Dec. 390 (BIA 2002), the IJ
rejected Negrete’s argument that his 1987 possession of a
controlled substance should not have been classified as an
aggravated felony. The IJ also rejected Negrete’s argument
that his firearms conviction did not amount to an aggra-
vated felony. In rejecting the latter argument, the IJ dis-
3
Prior to 1996, § 212(c) of the INA, codified at 8 U.S.C. § 1182(c),
allowed the Attorney General to waive deportation for aliens
under certain circumstances. In 1996, Congress passed the
Illegal Immigration Reform and Immigrant Responsibility Act
that, effective in April 1997, repealed § 212(c) and replaced
it with a new section giving the Attorney General authority
to cancel removal only for a very narrow class of aliens. 8 U.S.C.
§ 1229b. Under the Supreme Court’s decision in INS v. St. Cyr,
533 U.S. 289, 326 (2001), however, § 212(c) waivers remain
available to aliens who pleaded guilty to an aggravated felony
prior to the effective date of the repeal and who would have
been eligible for relief under the law then in effect. See gen-
erally Valere v. Gonzales, 473 F.3d 757, 759-60 (7th Cir. 2007)
(discussing the current status of § 212(c) waivers in great detail).
Nos. 06-1931 & 06-2938 5
cussed In re Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002)
(“Vasquez-Muniz II”), wherein the Board reversed its two-
year-old ruling in In re Vasquez-Muniz, 22 I&N Dec. 1415(BIA 2000) (“Vasquez-Muniz I”). In Vasquez-Muniz I, the
Board had held that a state law conviction for possession
of a firearm by a felon did not count as an aggravated
felony for immigration purposes if the state offense did not
require an effect on interstate or foreign commerce. Based
on In re Yanez-Garcia and Vasquez-Muniz II, the IJ further
determined that Negrete had no valid form of relief from
removal available to him, and therefore ordered that
Negrete be removed to Mexico.
Negrete appealed to the Board. In a decision dated
March 9, 2006, the Board affirmed the IJ’s ruling and
dismissed Negrete’s appeal. Negrete filed a motion to
reconsider, arguing that his removability was affected by
this court’s decision in Gonzales-Gomez v. Achim, 441 F.3d
532 (7th Cir. 2006), wherein we held that a drug offense
that was classified as a felony under state law, but only
a misdemeanor under the Controlled Substances Act,
did not constitute an aggravated felony under the INA.
The Board agreed that, under Gonzales-Gomez, Negrete’s
1987 drug conviction could not count as an aggravated
felony. However, the Board, citing its decision in Vasquez-
Muniz II, found that Negrete was still removable under
the INA as an alien convicted of an aggravated felony
because of his conviction for unlawful possession of a
firearm by a felon. Negrete filed both a petition to review
the Board’s decision affirming the IJ and a petition to
review the Board’s denial of his motion to reconsider.
6 Nos. 06-1931 & 06-2938
II.
On appeal, Negrete challenges the Board’s interpretation
of the INA’s aggravated felony provision in Vasquez-Muniz
II, as well as the Board’s application of its decision in
Vasquez-Muniz II to this case. Specifically, he argues that
the Board should not have classified his 1990 Illinois
conviction for unlawful possession of a weapon by a
felon as an aggravated felony under the INA. That classifi-
cation is important because an aggravated felony pre-
vents Negrete from seeking cancellation of removal. See
8 U.S.C. § 1229b(a) (“The Attorney General may cancel
removal in the case of an alien who is inadmissible or
deportable from the United States if the alien . . . has not
been convicted of any aggravated felony.”). Section
101(a)(43) of the INA defines aggravated felonies. 8 U.S.C.
§ 1101(a)(43). The pertinent subsection of that provision
is § 101(a)(43)(E)(ii) of the INA, which provides that
“[t]he term ‘aggravated felony’ means . . . an offense
described in . . . section 922(g)(1) . . . of Title 18 (relating
to firearms offenses).” 8 U.S.C. § 1101(a)(43)(E)(ii). In
addition, the penultimate sentence of § 101(a)(43) states
that “[t]he term [aggravated felony] applies to an offense
described in this paragraph whether in violation of Fed-
eral or State law.” 8 U.S.C. § 1101(a)(43).
Negrete argues that his 1990 conviction for unlawful
possession of a firearm by a felon is not an offense “de-
scribed in” 18 U.S.C. § 922(g)(1) because the elements of
those offenses are not the same. “There are three elements
to a § 922(g)(1) violation: the prior felony, the possession
of the gun and the gun’s travel in interstate commerce (that
is, across state lines) prior to the defendant’s possession
of it.” United States v. Ortiz, 474 F.3d 976, 982 (7th Cir.
2007). In contrast, the elements for the offense of unlawful
Nos. 06-1931 & 06-2938 7
possession of a weapon by a felon in Illinois are: “(1) the
defendant knowingly possessed a firearm, and (2) the
defendant had previously been convicted of a felony.”
People v. Vasquez, 856 N.E.2d 523, 531-532 (Ill. App. Ct.
2006) (citing 720 ILCS 5/24-1.1(a)). Because a convic-
tion for unlawful possession of a weapon by a felon in
Illinois does not require the element of “in or affecting
commerce,” as § 922(g)(1) does, Negrete argues that his
1990 Illinois conviction for unlawful possession of a
weapon is not an offense “described in” section 922(g)(1),
and consequently is not an “aggravated felony” under
§ 101(a)(43)(E)(ii) of the INA.
Before we examine that contention, we must determine
the standard of review. “Ordinarily, we review de novo
the classification of an offense as an aggravated felony,
giving deference to the [Board’s] reasonable interpretation
of the INA.” Sharashidze v. Gonzales, 480 F.3d 566, 568 n.4
(7th Cir. 2007). However, Negrete argues that we owe the
Board no deference here because this case, like Gonzales-
Gomez v. Achim, 441 F.3d 532 (7th Cir. 2006), turns on the
interpretation of federal criminal law. We disagree. In
Gonzales-Gomez, the interpretation of the phrase “any
felony punishable under the Controlled Substances Act” in
18 U.S.C. § 924(c)(2) was at issue. Here we need not
interpret any federal criminal statute. Instead, all that
is necessary from the federal criminal code in deciding
this case is a simple recitation of § 922(g)(1)’s elements,
which is given above. The question of interpretation here
revolves around whether “in interstate commerce” or a
similar commercial reference is a necessary element for a
state statute to qualify as an aggravated felony.
Negrete, of course, argues that the Board’s interpreta-
tion of § 101(a)(43)(E)(ii) of the INA in Vasquez-Muniz II is
8 Nos. 06-1931 & 06-2938
unreasonable. The Seventh Circuit has not yet considered
whether the definition of an aggravated felony under
§ 101(a)(43)(E)(ii) includes a state law conviction for
firearm possession by a felon if that offense does not
include the element of affecting commerce. The Ninth
Circuit, however, has concluded, in the context of inter-
preting the United States Sentencing Guidelines, that it
does include such a conviction. United States v. Castillo-
Rivera, 244 F.3d 1020 (9th Cir. 2001). The Guidelines
import the definition of “aggravated felony” from the
INA to use in determining whether a defendant merits a
sentencing enhancement for being deported after a con-
viction for an aggravated felony. U.S.S.G. § 2L1.2 applica-
tion note 3 (2007). In Castillo, the defendant was assessed
the sentencing enhancement for being deported after a
conviction for an aggravated felony because of his
state court conviction for being a felon in possession of a
handgun. 244 F.3d at 1021. On appeal, he argued that the
enhancement was improper because his state felon-in-
possession conviction, unlike § 922(g)(1), did not require
an interstate or foreign commerce nexus and therefore
was not an “aggravated felony.” Id. at 1022.
The Ninth Circuit disagreed. It held that the commerce
element of § 922(g)(1) was “merely a jurisdictional basis”
and therefore not essential to whether the state felon-in-
possession offense was an aggravated felony. Id. at 1023
(quoting United States v. Sandoval-Barajas, 206 F.3d 853,
856 (9th Cir. 2000)). In reaching that conclusion, the
Ninth Circuit first examined the text of § 101(a)(43). It
noted that Congress clearly intended state crimes to
serve as predicate offenses for aggravated felonies, since
§ 101(a)(43) explicitly states in its penultimate sentence
that an aggravated felony is “an offense described in
Nos. 06-1931 & 06-2938 9
this paragraph whether in violation of Federal or State
law.” Id. (quoting 8 U.S.C. § 1101(a)(43)). Furthermore,
the court in Castillo found the fact that Congress used
the looser standard “described in” for § 101(a)(43)(E)(ii),
rather than the more precise phrase “defined in” used
elsewhere in § 101(a)(43), significant because it demon-
strated that Congress “wanted more than a negligible
number of state offenses to count as aggravated felonies.”
Id. (quoting Sandoval, 206 F.3d at 855). According to the
Ninth Circuit, interpreting the jurisdictional element of
§ 922(g) as essential for a state offense to qualify as an
aggravated felony would do precisely what Congress did
not intend, i.e., reduce the number of state firearms of-
fenses that qualify as aggravated felonies under
§ 101(a)(43)(E)(ii) to a negligible number, because state
firearms convictions would “[r]arely, if ever” specify
whether the commerce element was met. Id. Finally, the
Ninth Circuit cited its own previous characterization of
the commerce element of § 922(g) as a non-substantive,
merely jurisdictional provision in reaching the conclu-
sion that the defendant’s state law conviction for posses-
sion of a firearm by a felon qualified as an aggravated
felony for sentencing purposes despite the lack of the
commerce element. Id. at 1024.
We find the Ninth Circuit’s reasoning persuasive. The
Illinois statute under which Negrete was convicted, 720
ILCS 5/24-1.1(a), is clearly the state law counterpart to
§ 922(g)(1). Although not “mere surplusage,” a jurisdic-
tional element does little more than ensure that the con-
duct regulated in a federal criminal statute is within the
federal government’s limited power to proscribe, thereby
preventing the federal government from usurping power
from the “States [who] possess primary authority for
10 Nos. 06-1931 & 06-2938
defining and enforcing the criminal law.” Brecht v.
Abrahamson, 507 U.S. 619, 635 (1993). The statutory scheme
expressly includes the state equivalent of a § 922(g)(1)
offense in the definition of “aggravated felony.” The only
purpose of the commerce element of § 922(g)(1) is to
obtain federal jurisdiction over the crime. Clearly Con-
gress did not intend an element not necessary in state
law to be the factor determining whether the state offense
can be considered the equivalent of a § 922(g)(1) offense.
That would likely eliminate the intended inclusion of most
state statutes, since states do not operate under the same
jurisdictional constraints as the federal government.
Negrete does list several Illinois criminal statutes that
he argues incorporate an element of affecting commerce.
See, e.g., 720 ILCS 5/24-3.5(c) (unlawful purchase of a
firearm); 720 ILCS 5/24-3.4 (unlawful sale of firearms by
liquor licensee); 720 ILCS 5/24-3 (unlawful sale of a
firearm); 720 ILCS 5/24-1(a)(7) (prohibiting, among
other things, the sale of a “machine gun,” sawed-off
shotgun, or explosive device); 720 ILCS 5/24-3.3 (prohibit-
ing, among other things, the sale of firearms on school
premises); 720 ILCS 5/24-2.1(a) (prohibiting, among
other things, the sale of firearm projectiles). An examina-
tion of those statutes, however, only confirms the
previous point. While some offenses committed under
those statutes may involve commerce, none of those
statutes contains an express element of affecting commerce,
which is what Negrete is arguing that § 101(a)(43)(E)(ii)
requires for his state felon-in-possession conviction to
count as an aggravated felony. Furthermore, Negrete’s
citation to those statutes misses the mark. The question is
not whether a state could conceivably create a felon-in-
possession offense that contains an element of affecting
commerce. Rather, it is whether Congress meant to limit
Nos. 06-1931 & 06-2938 11
the phrase “offense described in section 922(g)(1)” con-
tained in § 101(a)(43)(E)(ii) only to state offenses that
have such an element. Nothing in the text of the statute
indicates that is what Congress intended. See Castillo,
244 F.3d at 1023.
Negrete argues, however, that the Ninth Circuit mis-
reads the text of § 101(a)(43). He bases his textual argu-
ment on the fact that Congress, in the definition of “aggra-
vated felony,” listed certain predicate crimes in general
terms—such as “rape,” “murder,” or “sexual abuse” in
§ 101(a)(43)(A)—but did not do so for firearms offenses,
instead referencing a specific federal provision for each
firearms offense. According to Negrete, the failure of
Congress to do so evinces an intent to require that all
the elements of a state firearms offense be identical to all
the elements of the federal firearms offense—including
any jurisdictional element—referenced in § 1101(a)(43)
(E)(ii) in order to count as an “aggravated felony.” In
essence, Negrete is arguing that “defined in” and “de-
scribed in” are synonymous. We reject this argument,
primarily because it renders the distinction between the
terms “described in” and “defined in” meaningless. See
United States v. Michalek, 54 F.3d 325, 335-36 (7th Cir.
1995). Also, it does not follow that, because Congress has
defined some crimes in general terms, it had to define all
crimes in general terms in order for the offense’s state law
counterpart to be included within the definition of an
“aggravated felony.” Indeed, many firearms offenses are
not susceptible to being easily described in general terms,
see, e.g., 18 U.S.C. § 922(g)(4) (offense of possession of a
firearm or ammunition by someone who has been adjudi-
cated as a mental defective or who has been committed
to a mental institution); while others are dependent on
12 Nos. 06-1931 & 06-2938
other provisions in a statutory scheme. See, e.g., 18 U.S.C.
§ 922(o) (making it unlawful for a person to possess a
“machinegun,” where that term is defined elsewhere in
the National Firearms Act). Congress could therefore
rationally have decided to describe those offenses by
reference to the statutory provision where they were
located rather than conjuring up an awkward general
descriptor, or having to recopy several parts of a stat-
utory scheme. Such a choice does not therefore logically
foreclose the inclusion of the state law counterparts of
those offenses. Because the Board’s interpretation of
§ 101(a)(43)(e)(ii) is rational and comports with the statu-
tory text, we find no error in the Board following its
decision in Vasquez-Muniz II in this case and determining
that Negrete’s 1990 Illinois conviction for unlawful posses-
sion of a weapon by a felon constituted an aggravated
felony.
As an alternative argument, Negrete contends that, even
if we accept the Board’s interpretation of § 101(a)(43)(E)(ii)
in Vasquez-Muniz II, the application of that interpretation
to his case had an impermissible retroactive effect and
therefore violated his due process rights. Negrete asserts
that such a change in interpretation must take place
through notice-and-comment rulemaking rather than
through adjudication. We find Negrete’s retroactivity
argument unpersuasive. An agency is not precluded
from announcing new principles in an adjudicative pro-
ceeding rather than through notice-and-comment rule-
making. SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)
(“[T]he choice made between proceeding by general rule
or by individual, ad hoc litigation is one that lies primarily
in the informed discretion of the administrative agency.”);
see also NLRB v. Bell Aerospace Co. Div. of Textron Inc., 416
Nos. 06-1931 & 06-2938 13
U.S. 267, 294-95 (1974). “An ‘administrative agency may
not apply a new rule retroactively when to do so would
unduly intrude upon reasonable reliance interests.’ ” State
of Ill. v. Bowen, 786 F.2d 288, 292 (7th Cir. 1986) (quoting
Heckler v. Cmty. Health Servs., Inc., 467 U.S. 51 (1984)).
Nevertheless, Negrete has not shown that he had any
“reasonable reliance interests” that were intruded upon by
the Board’s change of course in Vasquez-Muniz II. Negrete
could not have reasonably relied on the rule of Vasquez-
Muniz I when he pleaded guilty to his 1990 felon-in-
possession offense because that decision was not even
handed down until 2000.4 By the time Negrete first ap-
peared in immigration court (September 5, 2002), Vasquez-
Muniz I was already overruled (January 15, 2002). Further-
more, Vasquez-Muniz I was a case of first impression in an
unsettled area of the law; it was on the books for less than
four months before the Ninth Circuit’s decision in Castillo
called it into question. See NLRB v. Wayne Transp., 776
F.2d 745, 751 n.8 (7th Cir. 1985) (noting factors in deciding
whether a new administrative rule should apply retroac-
tively include, inter alia, whether the new rule “represents
an abrupt departure from well established practice or
merely attempts to fill a void in an unsettled area of law”;
“the extent to which the party against whom the new
rule is applied relied on the former rule”; and “the statu-
4
To the extent that Negrete appears to be asserting detrimental
reliance on the basis that, when he pleaded guilty, he could not
have anticipated that his 1990 conviction would qualify as an
“aggravated felony” due to the 1996 statutory amendments to
that provision, his argument is foreclosed by Flores-Leon v.
INS, 272 F.3d 433, 438-39 (7th Cir. 2001), where we found
that Congress had clearly manifested an intent to apply the
amended definition of “aggravated felony” retroactively.
14 Nos. 06-1931 & 06-2938
tory interest in applying a new rule”) (citing cases). Thus,
the Board’s decision two years later to overturn Vasquez-
Muniz I was hardly the “abrupt departure from well
established practice” that Negrete would have us believe.
Id. Finally, as the preceding discussion has illustrated,
the Board’s new interpretation rests on solid statutory
ground. The Board therefore did not violate Negrete’s
due process rights by applying it.
Negrete’s last two sets of arguments can be quickly
dispatched. First, Negrete makes several arguments in
support of his eligibility for cancellation of removal. But
because we find that the Board did not err in finding
that his 1990 firearms conviction was an “aggravated
felony,” and therefore correctly found that Negrete is
statutorily ineligible for cancellation of removal, see 8
U.S.C. § 1229b, we need not address those arguments.
Second, Negrete argues that the Board erred in not sim-
ultaneously granting a § 212(c) waiver and cancellation
of removal. As Negrete acknowledges in his brief, how-
ever, the courts of appeals that have considered this
argument have rejected it. See Peralta-Taveras v. Attorney
Gen., 488 F.3d 580, 585 (2d Cir. 2007) (citing cases). The
courts in those cases reasoned that, because the stat-
utory bar to eligibility for cancellation of removal is the
conviction for an aggravated felony, even if the alien could
obtain a § 212(c) waiver, the alien would still remain a
person who has been “convicted of an aggravated felony”
and therefore ineligible for cancellation of removal under
8 U.S.C. § 1229b. See, e.g., id. at 585. We find that logic
sound, and therefore reject Negrete’s contention that he
is eligible for a simultaneous grant of a § 212(c) waiver
and cancellation of removal.
Nos. 06-1931 & 06-2938 15
III.
The Board did not err in determining that Negrete’s 1990
Illinois conviction for possession of a firearm by a felon
constituted an “aggravated felony” and therefore made
Negrete statutorily ineligible for cancellation of removal,
as well as a simultaneous grant of a § 212(c) waiver and
cancellation of removal. The Board’s interpretation of
§ 101(a)(43)(E)(ii) of the INA, which does not require a
state felon-in-possession offense to include a jurisdic-
tional element of affecting commerce in order for that
offense to be equivalent to an offense “described in” 18
U.S.C. § 922(g)(1), is a reasonable interpretation of that
provision. Furthermore, the application of that inter-
pretation to Negrete did not violate Negrete’s due process
rights because Negrete has not shown any reasonable
reliance upon the Board’s prior interpretation of
§ 101(a)(43)(E)(ii). We therefore DENY Negrete’s petitions
for review.
USCA-02-C-0072—3-3-08