     Case: 12-60977      Document: 00512551641         Page: 1    Date Filed: 03/06/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                      No. 12-60977                            FILED
                                                                          March 6, 2014
                                                                         Lyle W. Cayce
DONALD EFREN FRANCO-CASASOLA,                                                 Clerk

                                                 Petitioner
v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                 Respondent




                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A043-282-317


Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       Donald Efren Franco-Casasola petitions for review of the decision of the
Board of Immigration Appeals (“BIA”) that he is ineligible for cancellation of
removal due to his conviction of an aggravated felony. Franco-Casasola argues
the BIA erred in determining that his statute of conviction was divisible and
in applying the modified categorical approach to conclude he had been
convicted of an aggravated felony. The petition is DENIED.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 12-60977
                 FACTUAL AND PROCEDURAL BACKGROUND
      Franco-Casasola, a native and citizen of Guatemala, was admitted as an
immigrant in Los Angeles, California, on May 29, 1992. On June 6, 2011, the
Department of Homeland Security (“DHS”) issued a Notice to Appear, alleging
that on April 1, 2011, Franco-Casasola was convicted of the fraudulent
purchase of firearms for export in violation of 18 U.S.C. § 554(a). The notice
alleged that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien
convicted of an aggravated felony, namely “illicit trafficking in firearms.” See
8 U.S.C. § 1101(a)(43)(C). Franco-Casasola denied the charges of removability
and filed an application for cancellation of removal. DHS responded by filing
a motion contending he was ineligible for cancellation of removal because his
conviction constituted an aggravated felony. See 8 U.S.C. § 1229b(a).
      The immigration judge (“IJ”) held an evidentiary hearing and DHS
submitted the indictment charging Franco-Casasola with conspiracy to
purchase and export firearms and ammunition to drug cartels in Guatemala
in violation of Section 554(a). Franco-Casasola pled guilty to buying five semi-
automatic pistols knowing they were intended for export to Guatemala and
was sentenced to five months’ imprisonment and two years of supervised
release. Franco-Casasola and his girlfriend also testified at the hearing about
his permanent resident status, work history, and family ties to the United
States. The IJ decided that Franco-Casasola’s conviction under Section 554(a)
did not constitute the aggravated felony of illicit trafficking in firearms,
making him eligible for discretionary relief from removal. It then determined
his case merited a favorable exercise of discretion and granted his application
for cancellation of removal. DHS appealed to the BIA.
      The BIA disagreed with IJ. It concluded that a conviction under Section
554(a) did constitute the aggravated felony of illicit trafficking in firearms,


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                                 No. 12-60977
thereby making cancellation of removal unavailable. Franco-Casasola timely
filed a petition for review.


                                    DISCUSSION
      Generally, this court reviews only the final decision of the BIA. Zhu v.
Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). The BIA’s determination that an
alien is ineligible for cancellation of removal is a question of law we review de
novo. Vasquez-Martinez v. Holder, 564 F.3d 712, 715 (5th Cir. 2009). While
we give deference to the BIA’s interpretation of immigration statutes, we
review de novo the BIA’s determination of whether a particular state or federal
crime qualifies as an aggravated felony. Id.; Patel v. Mukasey, 526 F.3d 800,
802 (5th Cir. 2008).
      An alien is eligible to seek discretionary cancellation of removal if he has
been a lawful permanent resident for at least five years, has resided in the
United States continuously for seven years after having been admitted under
any status, and has not been convicted of an aggravated felony. 8 U.S.C.
§ 1229b(a). An alien seeking cancellation of removal has the burden of showing
by a preponderance of the evidence “that he is not an aggravated felon and is
therefore statutorily eligible for relief.” Vasquez-Martinez, 564 F.3d at 715-16.
      The initial question on appeal is how to determine whether a prior
offense qualifies as an aggravated felony.      We start with the categorical
approach in making that determination. See Larin-Ulloa v. Gonzalez, 462 F.3d
456, 463 (5th Cir. 2006). Using this approach, the court refers “only to the
statutory definition of the crime for which the alien was convicted . . . and
ask[s] whether that legislatively-defined offense necessarily fits within the
INA definition of an aggravated felony.” Id. The statute under which Franco-
Casasola was convicted provides:


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                                  No. 12-60977
      Whoever fraudulently or knowingly exports or sends from the United
      States, or attempts to export or send from the United States, any
      merchandise, article, or object contrary to any law or regulation of the
      United States, or receives, conceals, buys, sells, or in any manner
      facilitates the transportation, concealment, or sale of such merchandise,
      article or object, prior to exportation, knowing the same to be intended
      for exportation contrary to any law or regulation of the United States,
      shall be fined under this title, imprisoned not more than 10 years, or
      both.

18 U.S.C. § 554(a). An aggravated felony includes “illicit trafficking in firearms
or destructive devices.” 8 U.S.C. § 1101(a)(43)(C). It is undisputed that the
categorical approach does not provide a final answer here because Franco-
Casasola’s statute of conviction does not necessarily fit within the INA
definition of the aggravated felony of illicit trafficking in firearms.
      If the categorical approach does not provide an answer, a modified
categorical approach may be used in limited circumstances. Patel, 526 F.3d at
803. All parties are also in agreement that the modified categorical approach
as applied by this court requires that the statute of conviction be divisible.
Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006). If it is, the modified
categorical approach allows examination of “the charging document, written
plea agreement, transcript of plea colloquy, and any explicit factual finding by
the trial judge to which the defendant assented” in addition to the language of
the statute of conviction. Larin-Ulloa, 462 F.3d at 464.
      The IJ and the BIA disagreed on the issue of whether Section 554(a) is
divisible for purposes of application of the modified categorical approach. The
BIA determined that Section 554(a) was divisible. It then applied the modified
categorical approach. The BIA also cited one of its earlier decisions, though, to
state that its methodology for analyzing whether a statute of conviction is
divisible varies from what this court has articulated. See Matter of Lanferman,
25 I. & N. Dec. 721, 725 (BIA 2012).

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                                      No. 12-60977
       The BIA has determined that in the immigration context, divisibility
should be permitted in “all statutes of conviction . . . regardless of their
structure, so long as they contain an element or elements that could be
satisfied either by removable or non-removable conduct.”                 Id. at 727.     In
selecting this broad approach for determining divisibility, the BIA specifically
rejected as too formulaic this court’s divisibility approach. Id. at 725 (citing
Amouzadeh, 467 F.3d at 455 and Larin-Ulloa, 462 F.3d 456). In the present
matter, the BIA applied the divisibility approach it outlined in Lanferman to
conclude that Section 554(a) is divisible. In doing so, the BIA held our past
decisions did not authoritatively define the scope of divisible statutes for
immigration purposes in the Fifth Circuit.
       We do not, in this appeal, analyze the merits of the BIA’s formulation for
determining divisibility. 1 We conclude that our precedents on divisibility also
command the conclusion that Section 554(a) is divisible. Our approach to
divisibility has focused on the structural or grammatical features of a statute
of conviction such as subdivisions or disjunctively-stated alternative means of
committing the offense. See Patel, 526 F.3d at 803. Although Section 554(a)
is not divided into discrete subsections, it does list various means of committing
the offense within disjunctively listed words and phrases. Section 554(a) lists
“any merchandise, article, or object” and prohibits exportation as well as
receiving, concealing, buying, selling, or in any manner facilitating “the
transportation, concealment, or sale of such merchandise, article or object.”
See 18 U.S.C. § 554(a).
       On its face, Section 554 prohibits various types of conduct and applies to
a broad range of objects, only some of which would constitute an aggravated


       1The Government has argued that the Board’s determination of the best approach in
the immigration context for determining divisibility is a legitimate exercise of the Board’s
prerogatives and is entitled to deference.
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                                      No. 12-60977
felony under Section 1101(a)(43)(C). See Nolos v. Holder, 611 F.3d 279, 284-85
(5th Cir. 2010) (finding statute divisible where it describes crimes, only some
of which qualify as aggravated felonies). Thus, we conclude the structural
characteristics of Section 554(a) “provide . . . multiple forms of the offense, and
at least one is not an aggravated felony,” making it divisible for use of the
modified categorical approach. 2 Perez-Gonzalez v. Holder, 667 F.3d 622, 625
(5th Cir. 2012). The BIA did not err in concluding Section 554(a) is divisible.
In light of our conclusion that Section 554(a) is divisible, it was also not error
for the BIA to apply the modified categorical approach.
       Upon review of the record of conviction, the BIA determined Franco-
Casasola’s offense fell within the meaning of illicit trafficking in firearms. The
record of conviction shows that Franco-Casasola did “buy, receive, conceal and
facilitate the transportation, concealment and sale” of semi-automatic pistols
“knowing these to be intended for export to Guatemala.” The term “trafficking”
is defined as “[t]he act of transporting, trading, or dealing, esp. in people or
illegal goods.”     BLACK’S LAW DICTIONARY (9th ed. 2009).                  The BIA has
concluded that “[e]ssential to the term” trafficking is its “business or merchant
nature.” 3 Matter of Davis, 20 I. & N. Dec. 536, 541 (BIA 1992), modified on




       2 This approach to determining when a statute is divisible appears consistent with the
Supreme Court’s most recent opinion discussing divisibility in the criminal context. The
Court described divisible statutes as those “listing potential offense elements in the
alternative . . .” where one alternative matches an element in the generic offense, but the
other does not. See Descamps v. United States, 133 S.Ct. 2276, 2283 (2013). Neither party
contends that the Supreme Court’s decision in Descamps, or its other decision from the same
term in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013), has altered our court’s precedent
regarding how we determine whether a statute is divisible or how we apply the modified
categorical approach in immigration cases. In the absence of any argument from the parties,
we do not analyze now whether either of those decisions requires alteration of our precedent.
       3 At least one of our sister circuits has concluded that the BIA’s construction of the

term — hinging on the business or merchant nature of the firearms conviction — is a
reasonable one comporting with the legal and everyday usage of that term. See Kuhali v.
Reno, 266 F.3d 93, 108 (2d Cir. 2001).
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                                 No. 12-60977
other grounds by Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 391 (BIA 2002).
We have likewise concluded that “trafficking ordinarily means some sort of
commercial dealing.” Arce-Vences v. Mukasey, 512 F.3d 167, 171 (5th Cir.
2007) (quotation marks omitted). Franco-Casasola’s record of conviction shows
that his offense involved commercial buying and selling of firearms for export
to Guatemala; as such, we conclude that the BIA did not err in determining
that Franco-Casasola’s conviction was an aggravated felony involving “illicit
trafficking in firearms” under Section 1101(a)(43)(C). The BIA did not err in
holding that Franco-Casasola is ineligible for cancellation of removal.
      The petition for review is DENIED.




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