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Keywords

jurisdictionstatuteappealnaturalization

jurisdictionstatuteappealpleaguilty plea

Related Cases

Valerio v. Immigration and Naturalization Service

Facts

Jose Valerio-Ochoa, a lawful permanent resident from Mexico, was convicted of discharging a firearm in a grossly negligent manner under California Penal Code 246.3. He had no prior criminal record and was served with an Order to Show Cause by the Immigration and Naturalization Service (INS) regarding his deportability based on this conviction. Valerio-Ochoa contested the deportability, arguing that his conviction did not constitute a criminal use of a firearm under the Immigration and Nationality Act.

On October 12, 1995, Valerio-Ochoa was convicted, by guilty plea, of discharging a firearm in a grossly negligent manner in violation of California Penal Code 246.3.

Issue

Whether discharging a firearm in violation of California Penal Code 246.3 constitutes a deportable firearms offense under 8 U.S.C. 1227.

Whether discharging a firearm in violation of California Penal Code 246.3 is a deportable firearms offense pursuant to 8 U.S.C. 1227.

Rule

Under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, there is no appeal permitted for an alien who is deportable due to a criminal offense enumerated in section 241(a)(2)(C) of the Immigration and Nationality Act.

Under the transitional rules, there shall be no appeal permitted in the case of an alien who is `deportable by reason of having committed a criminal offense enumerated in section 241(a)(2)(C) of the Immigration and Nationality Act.

Analysis

The court analyzed whether Valerio-Ochoa's conviction for discharging a firearm in a grossly negligent manner fell under the definition of a deportable offense. It concluded that the statute's broad language encompassed all varieties of firearms offenses, including those involving negligent conduct. The court determined that the conviction qualified as 'using' a firearm under the relevant immigration statute, thus affirming the Board of Immigration Appeals' decision.

The reach of 8 U.S.C. 1227 (a)(2)(C) is certainly broad enough to include such a statute. It provides, in relevant part, that 'any 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.'

Conclusion

The court dismissed Valerio-Ochoa's petition for review for lack of jurisdiction, affirming that his conviction constituted a deportable offense under the Immigration and Nationality Act.

We conclude that it is, and dismiss Valerio-Ochoa's petition for review for lack of jurisdiction pursuant to IIRIRA 309(c)(4)(G).

Who won?

The INS prevailed in the case as the court upheld the Board of Immigration Appeals' decision that Valerio-Ochoa's conviction was a deportable offense.

The Board of Immigration Appeals affirmed the immigration judge's order.

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