U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Khan-Avila, Maleha OHS/ICE .. Office of Chief Counsel
Law Offices of Zulu Ali 10400 Rancho Road
2900 Adams St., Suite C 13 Adelanto, CA 92301
Riverside, CA 92504

Name: RAMIREZ HERNANDEZ, PEDRO .. A 096-819-806

Date of this notice: 10/12/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
 ..

U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A096 819 806 - Adelanto, CA Date:

OCT 12 2017
In re: Pedro Daniel RAMIREZ HERNANDEZ

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Maleha Khan-Avila, Esquire

APPLICATION: Termination

The respondent's case is before the Board upon remand from the United States Court of
Appeals for the Ninth Circuit. The Ninth Circuit, in a March 20, 2015, order, granted the
Government's motion to remand to the Board to consider what effect, if any, the Ninth Circuit
intervening decisions U.S. v. Aguilera-Rios, 169 F.3d 626 (9th Cir. 2014) and Medina-Lara v.
Holder, 771 F.3d 1106 (9th Cir. 2014) have on the respondent's removability. In response to the
Ninth Circuit remand, the respondent has filed a brief, but the Department of Homeland Security
(OHS) has not filed a brief.

In her September 18, 2012, decision, the Immigration Judge found the respondent removable
under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. 1227(aX2)(C),
(certain fireann offenses) due to his guilty plea to shooting at an unoccupied vehicle in violation
of Cal. Penal Code 247(b), for which he was sentenced to a total of 365 days in jail (IJ at 2; Exh.
3).

To determine whether an offense under Cal. Penal Code 247(b) constitutes a firearm offense
under section 237(a)(2)(C), we begin with the categorical approach. Mathis v. United States,
136 S.Ct. 2243 (2016); Descamps v. United States, 133 S.Ct. 2276 (2013); see also Matter of
Chairez, 26 I&N Dec. 819 (BIA 2016). Under this approach, we focus solely on whether the
elements of the statute of conviction sufficiently match the elements of section 237(a)(2)(C). See
Mathis v. United States, 136 S.Ct. at 2248; Descamps v. United States, 133 S.Ct. at 2281; Matter
ofChairez, 26 I&N Dec. at 821.

Cal. Penal Code 247(b) provides in relevant part:

(b) Any person who discharges a fireann at an unoccupied motor vehicle or an

uninhabited building or dwelling house is guilty of a public offense punishable by
imprisonment in the county jail for not more than one year or in the state prison.
This subdivision does not apply to shooting at an abandoned vehicle, unoccupied
vehicle, uninhabited building, or dwelling house with the permission of the owner.

The Immigration and Nationality Act expressly excludes "antique firearms" from the generic
definition of a "fireann." See section 237(a)(2)(C) of the Act, 8 U.S.C. 1227(a)(2)(C)


A096 819 806

.(incorporating into this provision the definition of "firearm" located at 18 U.S.C. 921(a));
18 U.S.C. 921(a)(3) ("The term 'firearm' .... does not include an antique firearm.").

Since the Immigration Judge's decision, the Ninth Circuit has held that any conviction under
a state firearms statute lacking an exception for antique firearms is not a categorical match for the
federal firearms ground of removal. See U.S. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014).

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v.

Under Aguilera-Rios, a Court may take subsequent legal developments into account if those
developments show that an alien should not have been removed at all.

Here, because the respondent's conviction under Cal. Penal Code 247(b) lacks an exclusion
for antique firearms, it is not a categorical match for the federal firearms ground of removal under
section 237(a)(2XC) of the Act. See Medina-Lara v. Holder, 771F.3d 1106, 1115-16 (9th Cir.
2014) (finding that at the time of his conviction, the term "firearm" in 12022 was defined by
former California Penal Code 12001(b), which does not exclude antique firearms. Thus, a plain
language comparison of the statutes would suggest that 12001(b) is overbroad).

Moreover, Cal. Penal Code 247(b) is indivisible, as the statute does not mention antique
firearms. This is not a situation where the statute "effectively creates 'several different crimes,' "
Descamps v. United States, 133 S. Ct. 2276, 2285 (2013) (quoting Nijhawan v. Holder, 557 U.S.
29, 41 (2009)), where "at least one, but not all of those crimes matches the generic version."
Descamps, 133 S.Ct. at 2285. As in Descamps, there is "a simple discrepancy between [the]
generic [crime] and the crime established in" the statute of conviction. Descamps, 133 S.Ct. at
2285. This renders the statute indivisible and thus outside the "narrow range of cases" in which
the modified categorical approach can be employed. Descamps, 133 S.Ct. at 2283 (quoting Taylor,
495 U.S. at 602, 110 S.Ct. 2143).

Consequently, as a matter of law, the respondent's conviction under Cal. Penal Code 247(b)
is not a predicate for removal under section 237(a)(2XC) of the Act. Because the DHS cannot
meet its burden of proof with regard to this charge, we will sustain the appeal and terminate these
removal proceedings. See Matter ofChairez-Castrejon, 27 l&N Dec. 21, 26 (BIA 2017) (finding
that termination would be necessary if the respondent had been convicted under the California
firearms statute that corresponds to the Utah statute at issue there).

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: The removal proceedings are terminated.