     Case: 14-60889      Document: 00513457668         Page: 1    Date Filed: 04/08/2016




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

                                      No. 14-60889
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                              April 8, 2016

MIGUEL ANGEL SEGOVIA-RIVAS,                                                 Lyle W. Cayce
                                                                                 Clerk
              Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

              Respondent




                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A079 549 321


Before REAVLEY, JOLLY, and ELROD, Circuit Judges.
PER CURIAM:*
       Miguel Angel Segovia-Rivas (Segovia-Rivas), a native and citizen of El
Salvador, became a lawful permanent resident of the United States in 2002.
In 2005 he was convicted of a Texas firearms offense resulting in his removal
from this country.      He contests the removal asserting that the statute of
conviction was not a firearms offense under the Immigration and Nationality
Act (INA) § 237(a)(2)(C). This argument failed before both the Immigration


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Judge (IJ) and the Board of Immigration Appeals (BIA). The argument also
fails here, so we deny Segovia-Riva’s Petition for Review.
                                           I.
       Generally, this Court reviews only the BIA’s decision as the BIA conducts
a de novo review of the administrative record. Mai v. Gonzales, 473 F.3d 162,
164 (5th Cir. 2006). We review questions of law de novo, but “defer to the BIA’s
interpretation of immigration regulations if the interpretation is reasonable.”
Id.
                                           II.

       Segovia-Rivas was removed under the federal statute for firearms
offenses 1 which states that:
       [a]ny 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.

INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C) (emphasis added). The removal
was based on Segovia-Rivas’ conviction for “Attempted Deadly Conduct –
Discharge of a Firearm” in violation of Texas Penal Code §§ 15.01 and 22.05.
The statute of conviction is comprised of two Texas statutes – Criminal
Attempt and Deadly Conduct. 2 In his request for review, Segovia-Rivas argues


       1 The Department of Homeland Security also supplemented its removal action under
INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i) which provides for deportation for a
conviction for a crime involving moral turpitude. Here, Segovia-Rivas does not dispute his
removal on this basis.
       2 Section 15.01 provides that an attempt offense is committed “if with specific intent

to commit an offense, [a person] does an act amounting to more than mere preparation that
tends but fails to effect the commission of the offense intended.” Tex. Penal Code § 15.01.
The deadly conduct portion states that “[a] person commits an offense if he knowingly
discharges a firearm at or in the direction of: (1) one or more individuals; or (2) a habitation,
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that the Texas statute of conviction is not a “firearm” offense under INA
§237(a)(2)(c). The crux of his argument is that the BIA improperly applied the
Supreme Court’s holding in Descamps v. United States, 133 S. Ct. 2276 (2013).
He correctly applies Descamps to the instant case, in that a statute of
conviction that sweeps more broadly than the generic crime cannot serve as a
predicate offense. Id. at 2283. However, by applying the modified categorical
approach, the BIA was entitled to review the charging instrument and properly
concluded that Count Three of the Indictment, to which Segovia-Rivas pled
guilty, tracked the language of section 22.05(b)(1) by alleging that he
“knowingly discharged a firearm at or in the direction of Veronica Contreras.”
Segovia-Rivas’ argument that the BIA misapplied Descamps is without merit.
      Alternatively, Segovia-Rivas asserts that even if the modified categorical
approach was properly applied, the BIA erred in finding that the attempted
deadly conduct conviction is a deportable offense under immigration law. The
BIA cites Matter of St. John, 21 I&N Dec. 593 (BIA 1996) which held that under
the amended INA § 241(a)(2)(C), a conviction for the attempted use of a firearm
is a deportable offense which replies retroactively. Segovia-Rivas argues that
that the Matter of St. John is distinguished from his case because: (1) the
underlying conviction was federal, not state, (2), the main issue was whether
the amended statute could be applied retroactively; and (3) the decision does
not specifically address whether the Texas statute for attempted deadly
conduct constitutes a firearm offense under INA § 237(a)(2)(C). The first two
differences cited by Segovia-Rivas are of no import to the instant case.
However, what is important and clearly applicable to the Texas statute at




building, or vehicle and is reckless as to whether the habitation, building, or vehicle is
occupied.” Tex. Penal Code § 22.05.
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issue, is that Matter of St. John holds that there does exist a deportable offense
of “attempt” as relative to the use of firearms.
      Additionally, Segovia-Rivas contends that he did not plead guilty to “use
of a firearm” but instead to “attempted deadly conduct – discharge firearm” at
an individual. The two “discharge firearm” words simply explain the manner
in which he attempted the deadly conduct. Discharging a firearm clearly
involves use of a firearm.
                                         III.
      Accordingly, the Petition for Review is DENIED.




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