NOT RECOMMENDED FOR PUBLICATION File Name: 19a0104n.06 No. 18-3537 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 05, 2019 JOSE SANDOVAL HERNANDEZ, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION WILLIAM P. BARR, Attorney General, ) APPEALS ) Respondent. ) OPINION ) ) BEFORE: CLAY and STRANCH, Circuit Judges; PEARSON, District Judge.* JANE B. STRANCH, Circuit Judge. Jose Sandoval Hernandez petitions for review of a Board of Immigration Appeals (BIA) ruling that he is ineligible for cancellation of removal because he was convicted of an aggravated felony. Because Michigan’s felony-firearm statute is divisible and, applying the modified categorical approach, Sandoval Hernandez was convicted of an aggravated felony, we DENY the petition for review. I. BACKGROUND Sandoval Hernandez is a lawful permanent resident who was admitted to the United States when he was seven years old. He is now 27 years old. His father and some of his sisters are U.S. citizens; his other siblings are lawful permanent residents. * The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by designation. No. 18-3537, Sandoval Hernandez v. Barr Sandoval Hernandez was indicted on three felony counts under Michigan law in 2015: (1) assault with a dangerous weapon (felonious assault), (2) carrying a concealed firearm, and (3) “felony firearm.” The indictment for the felony-firearm count states that he “did carry or have in his/her possession a firearm, to wit: a pistol, at the time he/she committed or attempted to commit a felony, to wit: Assault with a Dangerous Weapon; contrary to MCL 750.227b.” Sandoval Hernandez pleaded guilty to the charges of assault with a dangerous weapon and felony firearm. He was sentenced to eight days’ imprisonment for the felonious assault, consecutive to two years’ imprisoment for felony firearm. The concealed-weapon count was dismissed. His only prior conviction was for driving without a valid license. Before Sandoval Hernandez was released from state prison, the Department of Homeland Security served him with a Notice to Appear. The amended Notice to Appear alleged that he was removable from the United States, despite being a lawful permanent resident, because he had been convicted of an aggravated felony—specifically, “a crime of violence . . . for which the term of imprisonment ordered [was] at least one year.” The Notice to Appear also alleged that he could be deported because he had been convicted of a firearms offense. Sandoval Hernandez admitted that he had been convicted of a firearms offense and denied that he had been convicted of an aggravated felony. He conceded that he was removable based on the firearms offense but sought cancellation of removal. Convictions for either a firearms offense or an aggravated felony would make him removable. 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(C). But, crucially, only a conviction for an aggravated felony would make him ineligible for discretionary cancellation of removal. See 8 U.S.C. § 1229b(a). And a conviction for a ...
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