                                 ____________

                                  No. 95-2152
                                 ____________


Kao Vue,                              *
                                      *
                  Petitioner,         *
                                      *
      v.                              *
                                      * Petition for Review of an
Immigration and Naturalization        * Order of the Immigration &
Service, District Director,           * Naturalization Service
Carl R. Houseman, United              *
States of America, Janet Reno,        *
Attorney General,                     *
                                      *
                  Respondents.        *

                                 ____________

                    Submitted:    February 12, 1996

                        Filed:     August 12, 1996
                                 ____________

Before McMILLIAN, LAY and HANSEN, Circuit Judges.
                              ____________


McMILLIAN, Circuit Judge.


      Kao Vue (petitioner) seeks review of a final decision of the Board of
Immigration Appeals (BIA) dismissing his appeal from a deportation order
entered by an immigration judge (IJ) (hereinafter "IJ order").       In re Kao
Vue, No. A23 864 378 (B.I.A. Apr. 13, 1995) (order dismissing appeal)
(hereinafter "BIA order").   The IJ found petitioner deportable under both
§ 241(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), 8 U.S.C.
§ 1251(a)(2)(A)(iii) (aggravated felony convictions), and § 241(a)(2)(C) of
the INA, 8 U.S.C. § 1251(a)(2)(C) (certain firearms offenses).   Petitioner
appealed to the BIA, arguing that the IJ erred in holding that his
conviction under Minnesota state law for aggravated robbery constituted a
firearms offense within the meaning of
§ 1251(a)(2)(C).   BIA    order at 2-5.   Petitioner raises the same issue in
the present petition.    He challenges the BIA's holding that § 1251(a)(2)(C)
applies to his aggravated robbery conviction even though use of a firearm
per se is not an essential element of that state law offense.          For the
reasons discussed below, we affirm.


                                  Background


       Petitioner, an adult male, is a native and citizen of Laos.         He
entered the United States as a refugee in 1979, and his status was adjusted
to lawful permanent resident in 1983.     On October 14, 1991, petitioner pled
guilty   in Minnesota state court to charges of attempted murder and
aggravated robbery, for which he is currently serving a sentence of 296
months (24 years and 8 months).


       On January 14, 1993, the Immigration and Naturalization Service (INS)
issued an order to show cause charging petitioner with deportability under
8   U.S.C. § 1251(a)(2)(A)(iii) ("[a]ny alien who is convicted of an
aggravated felony at any time after entry is deportable").       On April 13,
1994, the INS supplementally charged petitioner with deportability under
8 U.S.C. § 1251(a)(2)(C).    Section 1251(a)(2)(C) provides:


             [a]ny alien who at any time after entry 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.


       The INS claimed that petitioner was deportable under § 1251(a)(2)(C)
on the basis of his 1991 conviction for aggravated robbery.       Under Minn.
Stat. Ann. § 609.245 (West 1991), aggravated robbery has the following
definition: "[w]hoever, while committing a robbery, is armed with a
dangerous weapon or any article used or fashioned in a manner to lead the
victim to reasonably believe it
to be a dangerous weapon, or inflicts bodily harm upon another, is guilty
of aggravated robbery."          Another Minnesota statute in the same chapter
defines "dangerous weapon" to include "any firearm, whether loaded or
unloaded."     Id. § 609.02(6) (West 1991).


        Prior to petitioner's deportation hearing, the INS filed certain
documents with the IJ for the IJ to consider as part of petitioner's record
of conviction.      Among the documents submitted by the INS was the amended
criminal complaint which had been filed against petitioner in 1991.                  See
Certified Administrative Record at 151-56 (amended criminal complaint).
The amended criminal complaint contained seven counts, of which petitioner
had pled guilty to two in Minnesota state court.             One of those two counts,
Count    3   (charging   petitioner     with    aggravated     robbery),    stated   the
following:


        [The defendant, h]aving knowledge of not being entitled
        thereto, took personal property, namely numerous
        firearms, from John Granlund, or in the presence of John
        Granlund, and used or threatened the [im]minent use of
        force against John Granlund to overcome his resistance
        or powers of resistance to, or to compel acquiescence
        in, the taking or carrying away of the property and,
        while committing the robbery, defendant Kao Vue was
        armed with a dangerous weapon, namely a Ruger G.P.100
        .357 revolver.


Id. at 154 (emphasis added).


        At   his   deportation      hearing,    petitioner    did   not    dispute   his
deportability under 8 U.S.C. § 1251(a)(2)(A)(iii) (aggravated felony
convictions).      IJ order at 2.    He also did not contest the authenticity of
the amended criminal complaint submitted by the INS, nor did he deny that
he had pled guilty to, and was convicted of, the count charging him with
aggravated robbery.        Id.      Rather, his sole contention was that his
aggravated robbery conviction did not, as a matter of law, constitute a
firearms conviction within the meaning of 8 U.S.C. § 1251(a)(2)(C) and,
consequently, he was




                                          -3-
eligible to seek a waiver of deportability under § 212(c) of the INA, 8
U.S.C. § 1182(c).1           IJ Order at 2.     The IJ found petitioner deportable
under       both   8    U.S.C.   §   1251(a)(2)(A)(iii)   and    §   1251(a)(2)(C)   and,
therefore, held that petitioner was ineligible to seek a waiver of
deportability.          IJ Order at 4-5.


        On appeal, the BIA agreed with the IJ's decision.             The BIA held that
Matter of P-F-, Int. Dec. No. 3201, 1993 WL 233119 (B.I.A. 1993), was
controlling.           BIA order at 3. In Matter of P-F-, the BIA held that the
alien had been convicted of two offenses within the contemplation of
§ 1251(a)(2)(C) where one of the two offenses, first degree robbery,
required as an element the carrying of a "firearm or other deadly weapon,"
and the other offense, first degree burglary, required as an element being
armed with "explosives or a dangerous weapon."                  1993 WL 233119, at *2.
Moreover, in Matter of P-F-, the criminal information in the petitioner's
record of conviction indicated that he had committed each of his offenses
while armed with a firearm.             Id. at *2-3.   Upon comparing Matter of P-F-
to the present case, the BIA opined "[a]lthough the cases do have some
differences, we do not find that any of the distinguishing features
highlighted by [petitioner] require us to reconsider our conclusions in
that case."        BIA order at 4.      The BIA further explained:


        [petitioner's] conviction record in this case clearly
        indicates the use of a dangerous weapon, a revolver. It
        is well established that a record of conviction includes
        the charge, the indictment, the plea, the verdict, and
        the sentence. . . . The criminal information or
        complaint is part of the conviction record and we may
        rely on it in making our decision. Use of the




        1
     See Matter of Montenegro, Int. Dec. No. 3192, 1992 WL 364787
(B.I.A. 1992) (relief under § 212(c) of the INA, 8 U.S.C.
§ 1182(c), is not available to remove deportability for firearms
convictions   under  §   241(a)(2)(C)  of  the   INA,  8   U.S.C.
§ 1251(a)(2)(C), regardless of whether the firearms offense
involved moral turpitude).

                                             -4-
          conviction record does not run the risk of re-litigating
          the criminal case, as feared by [petitioner].


Id.    at   4-5 (citations and footnote omitted).          Accordingly, the BIA
dismissed petitioner's appeal.     Id. at 5.     Petitioner sought review in this
court of the BIA's decision, and we now affirm.


                                    Discussion


          Petitioner argues that the BIA erred in holding that his conviction
for aggravated robbery constitutes a firearms offense within the meaning
of    8   U.S.C. § 1251(a)(2)(C).     He maintains that, to qualify under
§ 1251(a)(2)(C), the offense must have as an essential element the use,
sale, possession, etc., of a firearm.     Petitioner argues that, because the
offense for which he was convicted has as an essential element the use of
a dangerous weapon or the infliction of bodily harm, but not the use of a
firearm per se, his conviction does not satisfy § 1251(a)(2)(C) as a matter
of law.      In support of his position, petitioner cites Matter of Lopez-
Amaro, Int. Dec. No. 3202, 1993 WL 256810 (B.I.A. 1993) (holding that 8
U.S.C. § 1251(a)(2)(C) applies where an alien has been convicted for
immigration purposes and the use of a firearm is deemed to be an element
or lesser included offense of the crime of conviction), aff'd, 25 F.3d 986
(11th Cir. 1994), cert. denied, 115 S. Ct. 1093 (1995).          Petitioner also
argues that his position is consistent with the "categorical" approach to
statutory interpretation favored by the Supreme Court in Taylor v. United
States, 495 U.S. 575 (1990).     In Taylor v. United States, the Supreme Court
addressed the meaning of a sentencing enhancement statute, 18 U.S.C.
§ 924(e), which refers to past convictions for "violent felon[ies]," which,
in turn, includes "burglary."        Petitioner argues that the Supreme Court
relied on the use of the word "conviction" in § 924(e) to hold that the
statute required a categorical analysis, which focuses on the elements of
the relevant offense, not the specific details of a particular defendant's




                                       -5-
criminal conduct.     Petitioner argues that the same reasoning should apply
in interpreting § 1251(a)(2)(C), because that statute refers to persons
"convicted of" using a "firearm."     Petitioner maintains that, because he
was charged under a state statute which technically refers more broadly to
"weapons"    rather    than   "firearms,"   he   is    not   deportable   under
§ 1251(a)(2)(C) under the reasoning in Taylor v. United States.       Finally,
petitioner argues, the fact-specific standard employed by the BIA would,
in many instances, require an immigration judge to engage in an elaborate
fact-finding process, which would be both impractical and contrary to
Congress's intent.


      We    review an agency's legal determinations de novo, according
substantial deference to the agency's interpretation of the statutes and
regulations it administers.      Chevron U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 837, 842-44 (1987).         The controlling statutory
language of 8 U.S.C. § 1251(a)(2)(C) provides that "[a]ny alien who at any
time after entry is convicted under any law of . . . using [etc.] . . . 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."    8 U.S.C. § 1251(a)(2)(C) (emphases added).        We read this
language to require that, in order for an offense to come within the
meaning of this subsection, the use, etc., of a weapon must be an essential
element within the definition of the offense of conviction and the weapon
in question must be a firearm or destructive device.2           We do not read
§ 1251(a)(2)(C), in its plain and ordinary meaning, to




       2
        Both of these requirements would be met if the specific
offense of conviction has as an essential element the use, etc., of
a firearm or destructive device. See, e.g., Matter of Lopez-Amaro,
Int. Dec. No. 3202, 1993 WL 256810, at *4-5 (B.I.A. 1993) (an alien
has committed a firearms offense for purposes of applying 8 U.S.C.
§ 1251(a)(2)(C) when the use of a firearm is deemed to be an
element or a lesser included offense of the crime of conviction),
aff'd, 25 F.3d 986 (11th Cir. 1994), cert. denied, 115 S. Ct. 1093
(1995).

                                      -6-
require that the use, etc., of a firearm or destructive device per se be
a definitional element of the offense of conviction.    In other words, not
every conviction under the same law must also satisfy the "firearm or
destructive device" requirement of § 1251(a)(2)(C).     Cf. Alleyne v. INS,
879 F.2d 1177, 1184 (3d Cir. 1989) (acknowledging that a particular
criminal statute can be the basis for some violations which would qualify
as deportable convictions and other violations which would not).    Moreover,
contrary to petitioner's argument, our holding today is not inconsistent
with the BIA's decision in Matter of Lopez-Amaro because, in that case, the
BIA was not presented with an issue involving the semantic distinction
between crimes requiring the use of a "weapon," and those requiring the use
of a "firearm."   Rather, in Matter of Lopez-Amaro, the issue before the BIA
concerned the distinction between sentencing enhancement provisions and
substantive offenses for purposes of applying 8 U.S.C. § 1251(a)(2)(C).
See 1993 WL 256810, at *4-5.


      We also hold that the IJ acted within its authority in relying upon
certain documentation from petitioner's record of conviction.      See Maroon
v. INS, 364 F.2d 982, 984-86 (8th Cir. 1966) (record of alien's conviction,
including copies of the indictment, judgment, sentence and commitment, was
sufficiently authenticated and received into evidence by the immigration
officer in making a deportation determination); Wadman v. INS, 329 F.2d
812, 813-14 (9th Cir. 1964).     In Wadman, the Ninth Circuit reviewed a
deportation order which included, among other findings, a determination
that the petitioner's foreign conviction for receipt of stolen property was
a ground for deportation under a provision permitting deportation of aliens
having been convicted of a crime of moral turpitude.    Id.   The petitioner
in Wadman argued, and the INS agreed in theory, that not every violation
of the substantive foreign provision under which the petitioner had been
convicted (§ 33(1) of the Larceny Act of Great Britain) would involve moral
turpitude.   Id. at 814.   However, the immigration officer and the




                                    -7-
BIA had found that the controlling criminal provision was "divisible."      Id.
("§ 33(1) of the Larceny Act provides a separation between the act of
receiving property 'knowing the same to have been stolen,' and the act of
receiving property knowing it to have been 'obtained in any way whatsoever
under circumstances which amount to felony or misdemeanour'").      Moreover,
the immigration officer and the BIA had reviewed documentation from the
petitioner's foreign record of conviction and had determined that the
petitioner's violation of § 33(1) of the Larceny Act was of the type
involving moral turpitude.    Id. at 813 ("[p]roof of [the petitioner's]
conviction appeared from exemplified certificates of the clerk and a deputy
clerk of the Central Criminal Court, Old Bailey, London, England, reciting
that petitioner 'was in due form of law convicted on indictment for that
he did receive [certain property] . . . knowing the same to have been
stolen'").   Upon review, the Ninth Circuit held


       [u]nder these circumstances, at least, the immigration
       officers and courts, while precluded from considering
       the evidence, may examine the "record of conviction"
       (including the indictment or information, plea, verdict
       or judgment and sentence) to determine the crime of
       which the alien actually was convicted. If this crime
       be one which necessarily or inherently does involve
       moral turpitude, the conviction is sufficient cause for
       deportation.


Id. at 814 (footnotes omitted).


       Similarly, in the present case, the statutory provision under which
petitioner was convicted, Minn. Stat. Ann. § 609.245, could be divided into
violations which would constitute deportable offenses under 8 U.S.C.
§ 1251(a)(2)(C) and violations which would not.       We hold that the IJ and
the BIA properly considered petitioner's record of conviction to determine
whether   petitioner's   violation   was   of   the   type   contemplated   by
§ 1251(a)(2)(C).   The amended criminal complaint demonstrated on its face,
with




                                     -8-
sufficient clarity and reliability, that petitioner was convicted of using
a weapon which was a firearm.   Moreover, the reference to petitioner's use
of a firearm in Count 3 of the amended criminal complaint was not mere
surplusage but was necessary to support an essential element of the offense
of aggravated robbery.    Cf. Matter of Perez-Contreras, Int. Dec. No. 3194,
1992 WL 364792, at * 3 & n.4 (B.I.A. 1992) (where no element of the crime
of conviction related to the use of a weapon, the statement in the criminal
information that the petitioner had used a firearm was "surplusage").


      Finally, with respect to petitioner's "categorical analysis" argument
based on Taylor v. United States, we note that petitioner has not cited,
nor can we find, a case in which the categorical method of interpreting
statutory offense classifications has been relied upon to interpret 8
U.S.C. § 1251(a)(2)(C).     In any case, we agree with the BIA's conclusion
that the IJ's decision in the present case is not inconsistent with the
Supreme Court's categorical approach to interpreting 18 U.S.C. § 924(e) in
Taylor v. United States.   See BIA order at 5.   Petitioner was convicted of
a state law offense for which an element was the use of a dangerous weapon
or the infliction of bodily harm.     Petitioner's record of conviction --
which we have held was properly considered by the IJ in this context --
facially revealed (1) that he had used a dangerous weapon (thus satisfying
an element of the offense) and (2) that the weapon he used was a firearm.
Therefore, the procedures employed by the IJ in determinating that the
requirements of § 1251(a)(2)(C) had been met "[did] not run the risk of 'an
elaborate factfinding process,' feared by the Supreme Court in Taylor v.
United States[, 495 U.S. at 601]."     BIA order at 5.




                                     -9-
                                Conclusion


     Accordingly, we hold that the BIA did not err in concluding that 8
U.S.C. § 1251(a)(2)(C) applies to petitioner's 1991 state law conviction
for aggravated robbery.   The order of the BIA is affirmed.



     A true copy.

           Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                  -10-
