FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO CAMACHO GIL,
Petitioner, No. 08-74371
v.
Agency No.
A095-697-552
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 7, 2011—Pasadena, California
Filed June 22, 2011
Before: Pamela Ann Rymer, Consuelo M. Callahan, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Callahan;
Partial Concurrence and Partial Dissent by Judge Rymer
8433
GIL v. HOLDER 8435
COUNSEL
Maziar Razi, Claribel E. Palacios (argued), Law Offices of
Mike Razi, PC, Los Angeles, California, for petitioner Robert
Camacho Gil.
Tony West, Assistant Attorney General, Luis E. Perez, Senior
Litigation Counsel, Joseph D. Hardy, Trial Attorney, Blair T.
O’Connor (argued), Assistant Director, Office of Immigration
Litigation, Civil Division, Department of Justice, Washington,
D. C., for respondent Eric H. Holder Jr., Attorney General.
8436 GIL v. HOLDER
OPINION
CALLAHAN, Circuit Judge:
Roberto Gil challenges a decision of the Board of Immigra-
tion Appeals (“BIA”) denying him cancellation of removal
and voluntary departure. He asserts that the BIA erred in (1)
determining he was ineligible for cancellation of removal
because his conviction for carrying a concealed weapon under
California Penal Code § 12025(a) did not constitute a remov-
able firearms offense under 8 U.S.C. § 1227(a)(2)(C); and (2)
denying him voluntary departure because this denial was
based on his criminal conviction under California Penal Code
§ 12025(a) and that conviction did not render him ineligible
for voluntary departure. We reject these arguments and
affirm.
I
Gil is a native and citizen of Mexico. He unlawfully
entered the United States in November of 1990. On December
10, 2004, Gil pleaded no contest to carrying a weapon con-
cealed within a vehicle in violation of California Penal Code
Section 12025(a), a misdemeanor. Two weeks later, Gil was
served with a Notice to Appear, alleging that he was remov-
able due to being present in the United States illegally in vio-
lation of INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i).
At a merits hearing on May 22, 2007, an Immigration
Judge (“IJ”) found that Gil was statutorily ineligible for can-
cellation of removal because his conviction under California
Penal Code § 12025(a) constituted a firearms offense under 8
U.S.C. § 1227(a)(2)(C). The IJ stated that because of this
offense, Gil was “ineligible” for voluntary departure, and also
that she was denying voluntary departure “as a matter of dis-
cretion because of [Gil’s] firearm conviction.”
Gil appealed the IJ’s decision to the BIA. On September
18, 2008, the BIA dismissed Gil’s appeal and affirmed the
GIL v. HOLDER 8437
IJ’s denial of his application for cancellation of removal under
8 U.S.C. § 1229b(b). The BIA also affirmed “the IJ’s decision
denying [Gil’s] application for voluntary departure in the
exercise of discretion. . . [because] [o]n appeal, [Gil] has not
come forward with any countervailing equities or favorable
factors demonstrating reversible error in the IJ’s decision.”
Gil timely filed a petition for review with this court.
II
Regarding Gil’s first claim, we review the BIA’s legal
determinations regarding an alien’s eligibility for cancellation
of removal de novo. Sinotes-Cruz v. Gonzales, 468 F.3d 1190,
1194 (9th Cir. 2006). “Federal courts afford the BIA substan-
tial deference when the BIA interprets a statute that it is
charged with administering,” Malilia v. Holder, 632 F.3d 598,
602 (9th Cir. 2011) (internal citations omitted). However,
“federal courts owe no deference to the BIA’s interpretation
of a criminal statute.” Id. (internal citations omitted).
The parties dispute whether we have jurisdiction to con-
sider Gil’s second claim. The Illegal Immigration Reform and
Immigrant Responsibility Act “abolished [our] authority to
review discretionary grants and denials of voluntary depar-
ture.” Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1170 (9th
Cir. 2003); see 8 U.S.C. § 1229c(f). However, we have juris-
diction to review questions of law regarding voluntary depar-
ture. Ramadan v. Gonzales, 479 F.3d 646, 653 (9th Cir.
2007). We review such questions de novo. Simeonov v. Ash-
croft, 371 F.3d 532, 535 (9th Cir. 2004).
“If the BIA issues a written opinion, it is that opinion which
is under review.” Morgan v. Mukasey, 529 F.3d 1202, 1206
(9th Cir. 2008) (internal citation omitted). However, “[t]o the
extent the [BIA] incorporates the [IJ’s] decision as its own,
[we] review both the decisions of the [BIA] and the IJ.” Ahir
v. Mukasey, 527 F.3d 912, 916 (9th Cir. 2008) (internal quota-
tion omitted).
8438 GIL v. HOLDER
III
[1] A nonpermanent resident alien is statutorily ineligible
for cancellation of removal if he or she has been convicted of
an offense under § 1227(a)(2). 8 U.S.C. § 1229b(b)(1)(C). Gil
contends that the BIA erred in holding that he was statutorily
ineligible for cancellation of removal because California
Penal Code § 12025(a) criminalizes more conduct than is cov-
ered by the definition of “firearms offense” in 8 U.S.C.
§ 1227(a)(2)(C), and therefore his conviction under
§ 12025(a) does not render him ineligible for cancellation of
removal under § 1227(a)(2)(C). Under the categorical
approach set forth in Taylor v. United States, 495 U.S. 575
(1990), we “compare[ ] the state statute of conviction with the
federal generic definition of the same crime.” United States v.
Velasquez-Bosque, 601 F.3d 955, 957 (9th Cir. 2010) (citing
Taylor, 495 U.S. at 602). Here, the state statute of conviction,
California Penal Code § 12025(a), provides:
(a) A person is guilty of carrying a concealed firearm
when he or she does any of the following:
(1) Carries concealed within any vehicle
which is under his or her control or direc-
tion any pistol, revolver, or other firearm
capable of being concealed upon the per-
son.
(2) Carries concealed upon his or her per-
son any pistol, revolver, or other firearm
capable of being concealed upon the per-
son.
(3) Causes to be carried concealed within
any vehicle in which he or she is an occu-
pant any pistol, revolver, or other firearm
capable of being concealed upon the per-
son.
GIL v. HOLDER 8439
Cal. Penal Code § 12025(a). Meanwhile, the federal statute, 8
U.S.C. § 1227(a)(2)(C), provides:
Any alien who at any time after admission is con-
victed 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 fire-
arm or destructive device (as defined in section
921(a) of Title 18) in violation of any law is deport-
able.
8 U.S.C. § 1227(a)(2)(C).
[2] Gil contends that § 1227(a)(2)(C) is not broad enough
to encompass certain offenses committed under
§ 12025(a)(3), which criminalizes conduct where a defendant
“causes [a concealed firearm] to be carried.” See Cal. Penal
Code § 12025(a). Specifically, Gil notes that a state court has
said, in regard to § 12025(a)(3), that “it is theoretically possi-
ble for a person to cause to be concealed a firearm that is not
in his or her possession, custody, or control, such as by con-
duct that conceals from view a firearm that is in the posses-
sion and control of another person.” People v. Padilla, 98 Cal.
App. 4th 127, 138 (2002). Based on Padilla, Gil asserts that
a person could be convicted under § 12025(a)(3) without hav-
ing either carried or possessed a firearm. Thus, he argues, the
state offense does not categorically fall within
§ 1227(a)(2)(C).
[3] However, § 1227(a)(2)(C) is not as limited as Gil con-
tends. We have stated that “[f]rom a plain reading of
[§ 1227(a)(2)(C)], it is clear that Congress intended to
embrace the entire panoply of firearms offenses.” Valerio-
Ochoa v. INS., 241 F.3d 1092, 1095 (9th Cir. 2001). We fur-
ther explained that
8440 GIL v. HOLDER
[§ 1227’s] comprehensive list of gerunds captures all
varieties of conduct relating to firearms transactions.
It includes inchoate as well as completed offenses,
enumerating not only the sale, use, ownership, or
possession of firearms, but also any attempt or con-
spiracy to do so. Finally, it encompasses convictions
“under any law” of engaging or attempting to engage
in such transactions. This wide-ranging text evinces
an expansive purpose—to render deportable those
aliens that commit firearms offenses of any type.
Id. (quoting Hall v. INS, 167 F.3d 852, 855 (4th Cir. 1999)).
In other words, the generic offenses listed in § 1227(a)(2)(C)
(such as “carrying” or “possessing” a firearm) should be inter-
preted as broadly as possible, so as to cover “firearms
offenses of any type.” See id.
Indeed, we previously rejected an argument similar to the
one Gil makes here. In Malilia v. Holder, an alien argued that
his conviction for “improper delivery of a firearm” did not fall
within the ambit of § 1227(a)(2)(C) because § 1227(a)(2)(C)
does not list “delivery” as a separate offense. 632 F.3d at 602.
We rejected that argument as relying on an overly narrow
reading of the federal statute and reiterated that
§ 1227(a)(2)(c)’s “repetitive use of unqualified language dem-
onstrates Congress’ intent to embrace the panoply of firearms
offenses.” Id. at 603 (citing Valerio-Ochoa, 241 F.3d at
1095). Moreover, we reasoned that, construed broadly, pos-
session of a firearm need not mean actual possession, but can
include any “exercise of dominion or control,” id. at 603, and
delivery of a firearm logically includes some aspect of domin-
ion or control over the firearm. See id. at 603-04.
[4] Gil similarly argues that because § 12025(a) uses the
phrase “cause to be carried,” it is broader than
§ 1227(a)(2)(C) because the federal statute criminalizes carry-
ing a firearm and possessing a firearm but does not make it
a separate offense to “cause [a firearm] to be carried.” But
GIL v. HOLDER 8441
Malilia states that we should reject an overly narrow reading
of the federal statute. Construed broadly, as Malilia requires,
a person who causes a firearm to be carried concealed in a car
in which he is an occupant has constructively carried the fire-
arm or demonstrated sufficient dominion and control over the
firearm to have possessed it. In situations where there is an
agreement between a person with physical possession of the
firearm and the defendant that the firearm is to be carried con-
cealed, the crime may also qualify as a conspiracy offense,
which is expressly included within the scope of
§ 1227(a)(2)(C).
[5] Nor does Padilla’s statement that “it is theoretically
possible for a person to cause to be concealed a firearm . . .
by conduct that conceals from view a firearm that is in the
possession and control of another person,” 98 Cal. App. 4th
at 139, alter our analysis. First, as explained above, such con-
duct falls within the ambit of § 1227(a)(2)(C). Second, Gil has
not cited any case where a defendant was actually prosecuted
for the conduct described in Padilla, and we must be guided
by the Supreme Court’s admonition that “find[ing] that a state
statute creates a crime outside the generic definition of a listed
crime in a federal statute requires more than the application
of legal imagination to a state statute’s language.” Gonzalez
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). As the Court
explained, the defendant must point to “a realistic probability,
not a theoretical possibility, that the State would apply its
statute to conduct that falls outside the generic definition of
a crime,” which requires that he “at least point to his own case
or other cases” in which the state court has so applied the stat-
ute. Id. (emphasis added). Given that we must interpret
§ 1227(a)(2)(c) as broadly as possible, and given that Padil-
la’s hypothetical was what the state court itself called a “theo-
retical possibility,” not an example of an actual prosecution,
we conclude that § 12025(a) falls within the bounds of
§ 1227(a)(2)(C). Accordingly, under the categorical approach,
a conviction under California Penal Code § 12025(a) consti-
tutes a firearms offense under 8 U.S.C. § 1227(a)(2)(C).
8442 GIL v. HOLDER
IV.
[6] Gil also contends that § 12025(a) is broader than
§ 1227(a)(2)(C) because § 1227(a)(2)(C) excludes antique
firearms from its definition of a firearm and § 12025(a) does
not.1 He cites Matter of Mendez-Orellana, 25 I&N Dec. 254
(BIA 2010), where the BIA held that the antique firearm
exception is an affirmative defense to removability under
§ 1227(a)(2)(C). See id. at 255-56. The holding in Mendez-
Orellana does not support Gil’s claim for relief. Under the
categorical approach, we “look only to the fact of conviction
and the statutory definition of the prior offense” to determine
whether the offense satisfies the generic definition. Taylor,
495 U.S. at 602. In doing so, we have held that “we consider
only the statutory elements of the offense.” United States v.
Asberry, 394 F.3d 712, 715 (9th Cir. 2005). Accordingly, in
conducting the categorical analysis, we do not consider the
availability of affirmative defenses; the fact that there may be
an affirmative defense under the federal statute, but not under
the state statute of conviction, does not mean that the state
conviction does not fall categorically within the federal statute.2
In United States v. Velasquez-Bosque, 601 F.3d 955, 963 (9th
Cir. 2010), we held that “[t]he availability of an affirmative
defense is not relevant to the categorical analysis.”3 Thus,
1
The firearms offense statute, § 1227(a)(2)(C), refers to 18 U.S.C.
§ 921(a) for the definition of “firearm.” Subsection 3 of § 921(a) states
that a firearm, under the statute, “does not include an antique firearm.”
2
Here, Gil did not argue that the firearm at issue actually was an antique
firearm. Accordingly, we need not decide whether an actual showing of
an affirmative defense might take a case out of the categorical approach
and require application of the modified categorical approach.
3
Consistent with this holding, every other circuit of which we are aware
that has considered the § 921(a)(3) “antique firearm” exception in the
criminal context, has treated it as an affirmative defense rather than an ele-
ment of the crime. See United States v. Lawrence, 349 F.3d 109, 122 (3d
Cir. 2003); United States v. Smith, 981 F.2d 887, 891-92 (6th Cir. 1992);
United States v. Laroche, 723 F.2d 1541, 1543 (11th Cir. 1984); United
States v. Mayo, 705 F.2d 62, 73-76 (2d Cir. 1983); see also United States
v. Washington, 17 F.3d 230, 232 (8th Cir. 1994).
GIL v. HOLDER 8443
Matter of Mendez-Orellana does not alter our conclusion that
a conviction under Cal. Penal Code § 12025(a) categorically
constitutes a removable firearms offense under 8 U.S.C.
§ 1227(a)(2)(C).
V
[7] Gil also contends that the BIA erred in denying him
voluntary departure because the denial was based solely on
the incorrect belief that Gil’s conviction rendered him statu-
torily ineligible for voluntary departure. This contention is
belied by the record. The IJ stated that “considering [Gil’s]
alternate application for relief for voluntary departure[,] I find
because of his criminal offense that he is also ineligible for
that and I would deny it as a matter of discretion because of
his firearm conviction.” (emphasis added). Moreover, the BIA
“affirm[ed] the [IJ]’s decision denying the respondent’s appli-
cation for voluntary departure in the exercise of discretion,”
and made no mention of the IJ’s alternative finding that Gil
was ineligible for voluntary departure. (emphasis added). Our
review is limited to the ground adopted by the BIA. See De
la Cruz v. INS, 951 F.2d 226, 228 & n.3 (9th Cir. 1991).
Accordingly, because the BIA affirmed based on the IJ’s dis-
cretionary denial, we do not have jurisdiction to review Gil’s
challenge to the denial of voluntary departure.4 See 8 U.S.C.
§ 1252(a)(2)(B)(i).
4
Gil contends that In re Dillingham, 21 I&N Dec. 1001, 1006 (BIA
1997), reversed on other grounds by Dillingham v. INS, 267 F.3d 996 (9th
Cir. 2001), supports his claim for relief because it held that the immigra-
tion court cannot base a discretionary denial of voluntary departure on a
conviction that does not itself make an individual statutorily ineligible for
voluntary departure. In Dillingham, the BIA determined that the IJ “erro-
neously found the respondent ineligible for voluntary departure ‘due to the
nature of his conviction.’ ” Id. at 1006. The BIA further stated, “we reject
the Service’s argument on appeal that we should deny the respondent’s
application for voluntary departure in the exercise of discretion because of
his drug conviction.” In other words, the BIA declined to deny voluntary
departure to the alien based solely on his prior conviction, but it did not
8444 GIL v. HOLDER
VI
In conclusion, we hold that a conviction under California
Penal Code § 12025(a) is categorically a “firearms offense”
under § 1227(a)(2)(C). Thus, the BIA properly held that Gil
was statutorily ineligible for cancellation of removal. We dis-
miss Gil’s second ground for appeal because we find that the
BIA’s denial of voluntary departure was a matter of discretion
and we lack jurisdiction to review such a discretionary deci-
sion.
DENIED IN PART AND DISMISSED IN PART.
RYMER, Circuit Judge, concurring in part and dissenting in
part:
I agree we lack jurisdiction to consider the BIA’s discre-
tionary denial of voluntary departure. I part company with
respect to whether California Penal Code § 12025(a) categori-
cally constitutes a firearm offense under 8 U.S.C.
§ 1227(a)(2)(C). Informed by California’s interpretation of its
hold that such a conviction could not serve as the basis for a valid discre-
tionary denial of voluntary departure.
Dillingham does not support Gil’s claim to relief. In Dillingham, the
BIA specifically held that despite respondent’s 13-year-old British convic-
tion for possession of a small amount of marijuana and cocaine, he
remained “eligible for voluntary departure.” Id. Here, the BIA first
affirmed the IJ’s determination that Gil’s state conviction was for a fire-
arms offense and that accordingly he was ineligible for cancellation of
removal. Second, bypassing the IJ’s alternate holding that the conviction
rendered him ineligible for voluntary departure, the BIA affirmed the IJ’s
discretionary denial of voluntary departure because Gil had failed to pre-
sent “any countervailing equities or favorable factors supporting voluntary
departure.” Id. Nothing in Dillingham supports Gil’s contention that a
prior conviction cannot be considered by the BIA in its discretionary
determination to deny voluntary departure.
GIL v. HOLDER 8445
own statute, section 12025(a)(3) covers conduct that does not
involve possession, custody, or control over the firearm. See
People v. Padilla, 98 Cal. App. 4th 127, 138 (2002). The fed-
eral statute, on the other hand, covers conduct, such as posses-
sion or carry, that manifests control over a firearm. Even
constructive possession requires some control over the fire-
arm. See United States v. Thongsy, 577 F.3d 1036, 1041 (9th
Cir. 2009); People v. Mejia, 72 Cal. App. 4th 1269, 1272
(1999).
While we must be careful not to engage in “legal imagina-
tion” when construing a state statute, here, Padilla held that
§ 12025 covers conduct broader than custody or control over
a firearm in order to sustain the defendant’s conviction. This
reading of the statute is based not on legal imagination but on
a state court’s application of the statute in an actual case. See
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
Because the conviction documents in the record do not
clearly establish that Gil’s conduct fell within the ambit of
§ 1227(a)(2)(C), I would grant the petition and remand to the
BIA to determine Gil’s eligibility for cancellation of removal
aside from his conviction. See Young v. Holder, 634 F.3d
1014, 1020 & n.4 (9th Cir. 2011); Fernandez-Ruiz v. Gon-
zales, 466 F.3d 1121, 1133-35 (9th Cir. 2006) (en banc).1
1
Because I would grant the petition on this basis, I would not reach the
issue of whether the antique firearms exception to § 1227(a)(2)(C) renders
it narrower than § 12025(a).