Lemus-Rodriguez, Sal v. Ashcroft, John D.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3908
SALVADOR LEMUS-RODRIGUEZ,
Petitioner,
v.
JOHN D. ASHCROFT, Attorney General of the United States,
Respondent.
____________
Petition to Review an Order of the
Board of Immigration Appeals.
No. A-91-492-598.
____________
ARGUED SEPTEMBER 30, 2003—DECIDED NOVEMBER 26, 2003
____________
Before BAUER, POSNER, and DIANE P. WOOD, Circuit Judges.
POSNER, Circuit Judge. Salvador Lemus-Rodriguez, a
citizen of Mexico, has been an illegal resident of the United
States since 1983 (except for a brief return to Mexico during
the 1980s). Eventually the Immigration and Naturalization
Service instituted removal (as deportation is now called)
proceedings against him. He conceded that he was remov-
able, but applied for cancellation of removal, a form of dis-
cretionary relief for which a long-time illegal resident can
apply. See Immigration and Nationality Act, § 240A(b)(1),
8 U.S.C. § 1229b(b)(1). The immigration judge turned down
his application on the ground that he was ineligible because
2 No. 02-3908
he had been convicted of attempted reckless discharge of a
firearm, in violation of Illinois law, 720 ILCS 5/24-1.5, by
firing a rifle into the air on New Year’s Eve. An alien who
has been convicted of violating any federal or state law that,
so far as pertains to this case, makes it a crime to attempt to
use any weapon “which is a firearm or destructive device”
as defined in 18 U.S.C. § 921(a) is ineligible for cancellation
of removal. 8 U.S.C. § 1227(a)(2)(C); see 8 U.S.C. §
1229(b)(1)(C). The definition of “destructive device” in 18
U.S.C. § 921(a) includes “any type of weapon . . . which will
. . . expel a projectile,” and therefore includes a rifle, except
“a rifle which the owner intends to use solely for sporting,
recreational or cultural purposes.” 18 U.S.C. § 924(a)(4).
Lemus-Rodriguez argues that he comes within the exception
because firing a rifle into the air to celebrate New Year’s Eve
is pursuant to a “cultural purpose.” The immigration judge
disagreed and issued a final order of removal against
Lemus-Rodriguez (while allowing him to depart voluntarily
before the order takes effect, cf. Huicochea-Gomez v. INS, 237
F.3d 696, 698 (6th Cir. 2001), which will make it easier for
him to reenter the United States lawfully someday,
Kaczmarczyk v. INS, 933 F.2d 588, 597-98 (7th Cir. 1991)), and
the Board of Immigration Appeals affirmed without
opinion.
There is a threshold question of our jurisdiction to re-
view the order. A “final order of removal against an alien
who is removable by reason of having committed” certain
crimes, including firearm offenses covered by 8 U.S.C.
§ 1227(a)(2)(C), is appealable only on the ground that the
alien didn’t commit one of the specified offenses. 8 U.S.C. §
1252(a)(2)(C). Thus jurisdiction and merits merge. Bazan-
Reyes v. INS, 256 F.3d 600, 604 (7th Cir. 2001); Luu-Le v.
INS, 224 F.3d 911, 914 (9th Cir. 2000). If section 1252(a)(2)(C)
is applicable, as the government contends, Lemus-Rodri-
No. 02-3908 3
guez committed a firearms offense covered by section
1227(a)(2)(C) and we have no jurisdiction and must dismiss
the appeal. If, however, he did not commit a firearms
offense covered by that section, the final order of removal is
appealable and we would have to vacate it because the
decision that he is ineligible for cancellation of removal
would be erroneous. This is clear, though odd. “To permit
judicial review into the validity of the INS’s determination
that an alien is deportable by reason of having committed
one of the listed crimes, in the guise of making a determina-
tion as to the court’s jurisdiction, is to permit review of the
very fact or condition that the statute appears on its face to
be precluding from review.” Berehe v. INS, 114 F.3d 159, 162
(10th Cir. 1997).
We do not think section 1227(a)(2)(C) applies in a case
such as this in which a firearms or other offense specified in
the section is not the basis on which the alien was found to
be removable, but instead is the ground for denying ex-
traordinary relief from the order. The other courts to have
faced the issue have split. Ogbudimkpa v. Ashcroft, 342 F.3d
207, 210 n. 6 (3d Cir. 2003). Compare Garcia v. United States,
329 F.3d 1217, 1221-22 (11th Cir. 2003); Lopez-Elias v. Reno,
209 F.3d 788, 793 (5th Cir. 2000); Ruckbi v. INS, 159 F.3d 18,
20-21 (1st Cir. 1998), with Alvarez-Santos v. INS, 332 F.3d
1245, 1253 (9th Cir. 2003); Yousefi v. INS, 260 F.3d 318, 325
(4th Cir. 2001); Choem v. INS, 129 F.3d 29, 37-38 (1st Cir.
1997). Some of these cases deal with a predecessor statute
with slightly different wording, but the difference is im-
material.
Although Lemus-Rodriguez’s firearms offense was a
ground on which he could have been ordered removed,
see 8 U.S.C. § 1227(a)(2)(C); Beslic v. INS, 265 F.3d 568, 569
(7th Cir. 2001); Adefemi v. Ashcroft, 335 F.3d 1269, 1273 (11th
4 No. 02-3908
Cir. 2003); Rankine v. Reno, 319 F.3d 93, 96 (2d Cir. 2003), it
was not the ground on which he was determined to be re-
movable. This means that had he not asked for cancellation
of removal, but instead had denied removability yet have
been found removable, he could have appealed from the
removal order. The government seems to think that if the
alien’s conviction of a firearms offense is injected in any
manner and at any stage in a removal proceeding—perhaps
merely noticed in passing, with no legal significance being
attached to it—the final order in that proceeding is unap-
pealable, simply because the offense would have been a
ground for removal. That is a possible approach, but there
is nothing in the language quoted above or in the history of
the provision to suggest that it is what Congress enacted.
So we have jurisdiction, and come to the merits, where the
ultimate question (no longer one of jurisdiction, if the
foregoing analysis is correct) is whether firing a gun in the
air to celebrate New Year’s Eve is a “cultural” use of a gun.
But the government says that we cannot reach the issue, first
because we cannot consider the facts underlying Lemus-
Rodriguez’s Illinois conviction (the charging papers in that
proceeding do not indicate the circumstances of his reckless
behavior, i.e., that it was in celebration of a holiday, though
a clever reader could easily infer from the fact that the crime
was “shooting a rifle in the air” and occurred “on or about
January 1” that that was indeed the character of the crime),
and second because the “cultural purpose” exception is not
applicable to firearms, but only to other destructive devices,
such as firecrackers. We disagree with both arguments.
When the circumstances of a crime are uncontested, the
principal objection to peeking behind the charging docu-
ments—that it would incite a trial within a trial, Taylor v.
United States, 495 U.S. 575 (1990); United States v. Allen, 282
F.3d 339, 343 (5th Cir. 2002), falls away, and the peek is
No. 02-3908 5
permitted. United States v. Rezin, 322 F.3d 443, 448-49 (7th
Cir. 2003); United States v. Alvarez-Martinez, 286 F.3d 470, 475
(7th Cir. 2002). The circumstances are not uncontested here,
but since the statutory exception for cultural uses cannot be
applied without determining the facts underlying the
conviction, the general rule cannot apply. United States v.
Londono-Quintero, 289 F.3d 147, 151-52 (1st Cir. 2002); cf.
United States v. Shannon, 110 F.3d 382, 384-85 (7th Cir. 1997)
(en banc).
As for whether the “cultural purpose” exception applies
to guns, we cannot see why not, either as a matter of text or
as a matter of statutory purpose imputable to Congress. It is
true that 8 U.S.C. § 1229(b)(1)(C) denies eligibility for
cancellation of removal to anyone convicted of a crime that
involves the use of a “firearm or a destructive device”
(emphasis added), and we saw that “firearm” is defined
without reference to a “cultural purpose” or any other ap-
proved purpose, such as sport and recreation. But “destruc-
tive device” we know is defined to include a firearm unless
it is a rifle used for one of the approved purposes. It would
be passing odd if the government by its choice of whether
to describe the firearm as a firearm simpliciter or as a
destructive device, to wit, a firearm, could extinguish
Congress’s evident intent not to make a subclass of firearms
(namely rifles) used for approved purposes, albeit used in
a criminal manner, a basis for precluding cancellation of
removal. A cultural purpose for using a rifle, for example to
make a war movie or a detective movie, is actually easier to
imagine than the use of a number of other destructive
devices, such as bombs and machine guns, for similar pur-
poses.
So Lemus-Rodriguez is not barred from claiming that his
criminal use of the rifle had a “cultural purpose.” But the
6 No. 02-3908
claim fails. Although there is no relevant legislative history
or judicial interpretation, we think it is pretty clear that
Lemus-Rodriguez’s use of his rifle was not cultural. Shoot-
ing rifles in the air to celebrate a holiday is part of the
culture of some other countries, but it is not part of American
culture, where for good reasons it is regarded as a dan-
gerously, and criminally, irresponsible use of a firearm.
Valerio-Ochoa v. INS, 241 F.3d 1092, 1095 (9th Cir. 2001);
People v. Clem, 78 Cal. App. 4th 346, 350 (Cal. App. 2000);
People v. Alonzo, 13 Cal. App. 4th 535, 539-40 (Cal. App.
1993). The immigration judge was thus quite right to rule
that Lemus-Rodriguez is not eligible for cancellation of
removal.
PETITION TO REVIEW DENIED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-26-03