Cite as 28 I&N Dec. 598 (BIA 2022) Interim Decision #4049 Matter of Ubaldo ORTEGA-QUEZADA, Respondent Decided July 28, 2022 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals The respondent’s conviction for unlawfully selling or otherwise disposing of a firearm or ammunition in violation of 18 U.S.C. § 922(d) (2018) does not render him removable as charged under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2018), because § 922(d) is categorically overbroad and indivisible relative to the definition of a firearms offense. FOR THE RESPONDENT: Pablo Rocha, Esquire, Harlingen, Texas FOR THE DEPARTMENT OF HOMELAND SECURITY: Donald W. Cassidy, Associate Legal Advisor BEFORE: Board Panel: GRANT, MULLANE, and MANN, Appellate Immigration Judges. MULLANE, Appellate Immigration Judge: In a decision dated February 3, 2021, an Immigration Judge found the respondent removable as charged and denied his application for cancellation of removal under section 240A(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(a) (2018). The respondent, a native and citizen of Mexico, has appealed from that decision. The Department of Homeland Security (“DHS”) filed a brief opposing the appeal. Thereafter, the Board requested supplemental briefing in this matter and both parties submitted briefs. The respondent’s appeal will be sustained and proceedings will be terminated. The respondent challenges the Immigration Judge’s determination that his conviction for unlawfully selling or otherwise disposing of a firearm or ammunition under 18 U.S.C. § 922(d) (2018) renders him removable under section 237(a)(2)(C) of the INA, 8 U.S.C. § 1227(a)(2)(C) (2018), for having been convicted of a firearms offense. DHS has the burden to establish that the respondent is removable as charged. 8 C.F.R. § 1240.8(a) (2021). Whether the respondent has been convicted of a firearms offense is a question of law the Board reviews de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2021). Section 237(a)(2)(C) of the INA, 8 U.S.C. § 1227(a)(2)(C), provides as follows: 598 Cite as 28 I&N Dec. 598 (BIA 2022) Interim Decision #4049 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, United States Code) in violation of any law is deportable. Although this provision encompasses a wide variety of conduct, the statute “does not state that ‘any type of firearm offense’ is a basis for deportation.” Flores-Abarca v. Barr, 937 F.3d 473, 480 (5th Cir. 2019). “Nor does the statute on its face reach ‘the entire panoply of firearms offenses.’” Id. (citation omitted). Thus, to determine whether a particular conviction constitutes a firearms offense under section 237(a)(2)(C) of the INA, 8 U.S.C. § 1227(a)(2)(C), we apply the categorical approach, which means that we focus on the elements of the respondent’s offense and the minimum conduct that has a …
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