Delfino Rodriguez-Contreras v. Jefferson B. Sessions III

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17-1335 DELFINO RODRIGUEZ-CONTRERAS, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A017 046 772. ____________________ ARGUED OCTOBER 4, 2017 — DECIDED OCTOBER 12, 2017 ____________________ Before BAUER, EASTERBROOK, and MANION, Circuit Judges. EASTERBROOK, Circuit Judge. An alien who has been con- victed of an “aggravated felony” as defined in 8 U.S.C. §1101(a)(43) is removable from the United States. Section 1101(a)(43)(E) specifies that any violation of 18 U.S.C. §922(g)(1) counts as an aggravated felony. Section 922(g)(1) in turn bars anyone who has been convicted of a felony from possessing a firearm. The Board of Immigration Appeals 2 No. 17-1335 concluded that these statutes require Delfino Rodriguez- Contreras, a citizen of Mexico who had been admitted for permanent residence, to leave the United States without any possibility of discretionary relief from removal. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229b(a)(3). After having been convicted of a felony in Illinois, Rodri- guez-Contreras was found in possession of a weapon and convicted of violating 720 ILCS 5/24–1.1(a). He spent 30 months in prison for that crime. If the elements of the state offense match the elements of §922(g)(1), then Rodriguez- Contreras must be removed. The question is not what he did in fact but what elements must be established to secure a conviction—in other words, whether the state statute “cate- gorically fits within the ‘generic’ federal definition of a cor- responding aggravated felony.” Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017), quoting from Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). Rodriguez-Contreras contends that 720 ILCS 5/24–1.1(a) does not match the federal crime because the state statute bars felons from possessing pneumatic weapons as well as those that use explosives. The Board did not address this ar- gument. Instead it stated that Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 2008), and Estrada-Hernandez v. Lynch, 819 F.3d 324 (7th Cir. 2016), have held that a violation of 720 ILCS 5/24–1.1(a) is an aggravated felony, so there was no work for the Board to do. The Board’s treatment of our decisions assumes that to address one legal argument is to address all possible legal arguments. Negrete-Rodriguez argued that the Illinois and national felon-in-possession crimes do not match because the state statute omits the interstate-commerce element that No. 17-1335 3 §922(g)(1) contains. We rejected that contention and held that courts consider statutes’ substantive elements rather than provisions that allocate prosecutorial authority. 518 F.3d at 501–03. See also Torres v. Lynch, 136 S. Ct. 1619 (2016) (a state crime covered by §1101(a)(43) is an aggravated felo- ny when it matches the federal crime in all but the commerce element). Our decision in Negrete-Rodriguez did not say whether the substantive elements of the state and federal statutes match, because the alien had not presented an ar- gument on the subject. Nor did the alien in Estrada- Hernandez. ...

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