Radfan Saleh Awad v. Alberto Gonzales , 494 F.3d 723 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-2795/07-1442
___________
Radfan Saleh Awad, *
*
Petitioner, *
* Petition for Review of a
v. * Final Decision of the Board
* of Immigration Appeals.
Alberto Gonzales, Attorney *
General of the United States of *
America, *
*
Respondent. *
___________
Submitted: May 16, 2007
Filed: July 20, 2007
___________
Before BYE, BEAM, and SMITH, Circuit Judges.
___________
SMITH, Circuit Judge.
Radfan Awad, a legal permanent resident, was found to be removable by an
immigration judge (IJ) after he was convicted of a misdemeanor firearm offense. The
Board of Immigration Appeals (BIA) affirmed the removal. We affirm the BIA's
decision and deny the petition for review.
I. Background
Awad, a native of Ethiopia and a citizen of Djibouti, legally entered the United
States in 1993 and became a permanent legal resident in 2003.1 Awad, a sport hunter
lawfully hunting, was stopped by a Minnesota Department of Natural Resources
officer in November 2005 while driving his all-terrain vehicle. Awad carried a loaded
firearm—a 300 Ultra Magnum Remington bolt-action hunting rifle. The officer issued
Awad a citation for Transportation of a Loaded Firearm, in violation of Minnesota
Statute § 97B.045. Awad paid the $100 fine for the offense and received a
misdemeanor conviction.2
Subsequently, Awad was charged with being removable under § 237(a)(2)(C)
of the INA.3 This section provides for the removal of any alien who has been
convicted under any law of, among other things, owning, possessing, or carrying any
firearm defined under 18 U.S.C. § 921(a). The IJ found Awad removable as charged,
concluding that the conviction under Minnesota Statute § 97B.045 was a conviction
covered by INA § 237(a)(2)(C), despite being a misdemeanor conviction for the
violation of a game and fish regulation. The IJ ordered Awad removed to Djibouti.
1
In granting Awad's adjustment of status in 2003, the IJ also granted Awad a
waiver of inadmissibility under § 212(I) of the Immigration and Nationality Act (INA)
for Awad's 1996 conviction for carrying a pistol without a permit.
2
Awad had also received a citation from the same Department of Natural
Resources officer on November 30, 2003, for Transportation of a Loaded Firearm.
That citation also resulted in a misdemeanor conviction. Although both the 2003 and
2005 convictions were considered by the IJ in finding Awad removable, the 2003
conviction has since been vacated. Thus, we address Awad's removability only with
respect to the 2005 conviction.
3
8 U.S.C. § 1227(a)(2)(C)
-2-
The BIA affirmed the IJ's decision and dismissed the appeal, finding that the
conviction fell within the broad category of firearm convictions covered by INA §
237(a)(2)(C). In making this determination, the BIA rejected Awad's argument that
his conviction fell outside the scope of INA § 237(a)(2)(C) because his hunting rifle
fell within the sporting exception to the definition of a firearm under § 921(a). The
BIA concluded that the sporting exception was limited to the definition of "destructive
devices" under § 921(a)(4) and that it did not apply to the definition of firearms under
§ 921(a)(3).
Awad filed a petition for review and a motion for stay of removal with this
court on July 7, 2006. We granted the stay pending this appeal. On appeal, Awad
argues that the BIA erred in finding him removable under INA § 237(a)(2)(C) because
his use of the hunting rifle fell under the sporting, recreational, or cultural purposes
exception to § 921(a)'s definition of a "firearm." Awad also contends that the BIA
committed numerous errors that violated his procedural due process rights.
II. Discussion
"This court reviews for substantial evidence the factual findings underlying the
BIA's denial of an appeal. Those findings must be upheld if they are supported by
reasonable, substantial, and probative evidence, based on the record as a whole."
Negele v. Ashcroft, 368 F.3d 981, 982 (8th Cir. 2004). The BIA's legal determinations
are reviewed de novo, "according substantial deference to the BIA's interpretation of
the statutes and regulations it administers." Id.Awad was found to be removable under INA § 237(a)(2)(C) as a result of his
misdemeanor conviction for transportation of a loaded firearm, in violation of
-3-
Minnesota Statute § 97B.045.4 Section 237(a)(2)(C) of the INA, entitled "Certain
firearm offenses," states:
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) in violation of any law is deportable.
Id. (emphasis added).
In interpreting INA § 237(a)(2)(C), the BIA construed "convicted under any
law" to include a misdemeanor conviction for a game and fish law violation. See
Minn. Stat. § 97A.301(4) (stating that failure to comply with a game and fish law is
a misdemeanor). Other courts have interpreted INA § 237(a)(2)(C) broadly as well.
See Valerio-Ochoa v. INS, 241 F.3d 1092, 1095 (9th Cir. 2001) ("From a plain reading
of [INA § 237(a)(2)(C)], it is clear that Congress intended to embrace the entire
panoply of firearms offenses."); Hall v. INS, 167 F.3d 852, 855 (4th Cir. 1999) ("[INA
§ 237(a)(2)(C)'s] comprehensive list of gerunds captures all varieties of conduct
relating to firearms transactions. . . . This wide-ranging text evinces an expansive
purpose—to render deportable those aliens that commit firearms offenses of any
type."). We give substantial deference to the BIA's interpretation of INA §
237(a)(2)(C). Negele, 368 F.3d at 982. Applying that standard, we find no error in the
4
Minn. Stat. § 97B.045, entitled "Transportation of Firearms," states: "A person
may not transport a firearm in a motor vehicle unless the firearm is: (1) unloaded and
in a gun case expressly made to contain a firearm, and the case fully encloses the
firearm by being zipped, snapped, buckled, tied, or otherwise fastened, and without
any portion of the firearm exposed; (2) unloaded and in the closed trunk of a motor
vehicle; or (3) a handgun carried in compliance with sections 624.714 and 624.715."
-4-
BIA's determination that Awad's misdemeanor game and fish conviction for the illegal
transportation of a loaded firearm was a deportable violation.
This case turns on the definition of a "firearm" in 18 U.S.C. § 921(a). Section
921(a)(3) defines a "firearm" as:
(A) any weapon (including a starter gun) which will or is designed to or
may readily be converted to expel a projectile by the action of an
explosive; (B) the frame or receiver of any such weapon; (C) any firearm
muffler or firearm silencer; or (D) any destructive device. Such term
does not include an antique firearm.
Awad's hunting rifle is a "firearm" as that term is defined in § 921(a)(3)(A)—a
weapon designed to expel a projectile by the action of an explosive. In reaching this
conclusion, we reject Awad's argument that Congress excluded his hunting rifle from
the definition of a firearm under the "sporting, recreational or cultural purposes"
exception for rifles set forth in § 921(a)(4).
We hold that the BIA's construction of the Act limiting the sporting,
recreational, or cultural purposes exceptions to destructive devices is reasonable and
entitled to deference. The terms "firearm" and "destructive device" are separately
defined in their own subsections, with only the destructive device definition
containing a sporting-rifle exception. See § 921(a)(4).5 As stated above, § 921(a)(3)
5
Section 921(a)(4) defines a "destructive device" as:
(A) any explosive, incendiary, or poison gas--
(I) bomb,
(ii) grenade,
(iii) rocket having a propellant charge of more than four ounces,
(iv) missile having an explosive or incendiary charge of more than
-5-
defines a "firearm" in four ways: "(A) any weapon (including a starter gun) which . . .
is designed to . . . expel a projectile by the action of an explosive; (B) the frame or
receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any
destructive device." (emphasis added). Because the definition uses the disjunctive
term "or" instead of the conjunctive "and," a weapon only has to meet one of the four
definitions to be a "firearm" under § 921(a)(3). As destructive devices are a
one-quarter ounce,
(v) mine, or
(vi) device similar to any of the devices described in the preceding
clauses;
(B) any type of weapon (other than a shotgun or a shotgun shell which
the Attorney General finds is generally recognized as particularly
suitable for sporting purposes) by whatever name known which will, or
which may be readily converted to, expel a projectile by the action of an
explosive or other propellant, and which has any barrel with a bore of
more than one-half inch in diameter; and
(C) any combination of parts either designed or intended for use in
converting any device into any destructive device described in
subparagraph (A) or (B) and from which a destructive device may be
readily assembled.
The term "destructive device" shall not include any device which is
neither designed nor redesigned for use as a weapon; any device,
although originally designed for use as a weapon, which is redesigned
for use as a signaling, pyrotechnic, line throwing, safety, or similar
device; surplus ordnance sold, loaned, or given by the Secretary of the
Army pursuant to the provisions of section 4684(2), 4685, or 4686 of
title 10; or any other device which the Attorney General finds is not
likely to be used as a weapon, is an antique, or is a rifle which the owner
intends to use solely for sporting, recreational or cultural purposes.
(emphasis added).
-6-
subcategory of firearms, all destructive devices are firearms, see § 921(a)(3)(D), but
not all firearms are destructive devices. See § 921(a)(4)(B).
We note that the Seventh Circuit reached a different conclusion in Lemus-
Rodriguez v. Ashcroft, 350 F.3d 652 (7th Cir. 2003). In Lemus-Rodriguez, the
defendant had been convicted of attempted reckless discharge of a firearm for firing
a rifle into the air on New Year's Eve. Id. at 653. The defendant argued that because
the definition of a destructive device in 18 U.S.C. § 921(a)(4) includes "any type of
weapon . . . which will . . . expel a projectile," the definition includes a rifle, except
"a rifle which the owner intends to use solely for sporting, recreational or cultural
purposes." Id. at 653–54. As such, the defendant argued that he came within the
sporting, recreational or cultural purposes exception because firing a rifle into the air
to celebrate New Year's Eve was pursuant to a "cultural purpose." Id. at 654. The
Seventh Circuit determined that even though a "firearm" is defined without reference
to the sporting, recreational or cultural purpose exceptions, the definition of
"destructive device" "include[s] a firearm unless it is a rifle used for one of the
approved purposes." Id. at 655. Thus, the court found that the defendant was not
barred from claiming that his use of the rifle had a cultural purpose, however the court
ultimately denied the defendant's claim after finding that his use of the rifle was not
cultural. Id.As we read the statute, the definition of "destructive device" does not
necessarily "include a firearm unless it is a rifle used for one of the approved
purposes." For a firearm to be a destructive device, the firearm's barrel must have a
bore diameter greater than one-half inch. 18 U.S.C. § 921(a)(4)(B). This bore diameter
requirement excludes many firearms from also constituting a destructive device.6
6
At oral argument, we questioned whether Awad's rifle had a barrel bore greater
than one-half inch in diameter, and granted Awad's counsel permission to submit
documentation, post-argument, regarding the barrel's bore size. The government
-7-
Thus, a firearm with a barrel bore one-half inch in diameter or less is not a destructive
device, even if the firearm does not fall within the sporting, recreational or cultural
purposes exception. Conversely, a rifle that is not a destructive device—such as a rifle
used solely for sporting, recreational, or cultural purposes or a rifle with a barrel bore
diameter of one-half inch or less—is still a firearm. Therefore, Awad's rifle is a
"firearm" under 18 U.S.C. § 921(a)(3); it is not excepted from that definition by the
sporting rifle exception for destructive devices; and Awad's misdemeanor conviction
for illegally transporting the firearm made him removable under the broad language
of INA § 237(a)(2)(C).
We also reject Awad's due process claims, as these claims do not identify a
fundamental procedural error or that such error resulted in prejudice. See Al Khouri
v. Ashcroft, 362 F.3d 461, 466 (8th Cir. 2004). To the contrary, Awad principally
reiterates his disagreement with the IJ's and BIA's determinations against him.
III. Conclusion
The BIA did not err in affirming the IJ's decision finding Awad removable
under INA § 237(a)(2)(C). Accordingly, the petition for review is denied.
______________________________
objected to the post-argument documentation provided, arguing that we lacked
jurisdiction to consider it. We note, without discussion of the issue, that the
documentation provided lists the rifle barrel's bore diameter as .308 inches—less than
one-half inch.
-8-