Case: 17-60236 Document: 00515081008 Page: 1 Date Filed: 08/19/2019
REVISED August 19, 2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-60236
United States Court of Appeals
Fifth Circuit
FILED
ROGELIO FLORES-ABARCA, August 16, 2019
Petitioner Lyle W. Cayce
Clerk
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Rogelio Flores Abarca seeks review of a Board of Immigration Appeals
(BIA) decision holding that he is statutorily ineligible for cancellation of
removal because of a 2004 firearm transportation conviction. We first conclude
that Flores Abarca failed to exhaust his challenge to the immigration court’s
jurisdiction based on alleged defects in his Notice to Appear. On the merits, we
hold that the Oklahoma misdemeanor of transporting a loaded firearm in a
motor vehicle is not one of the firearms offenses listed under 8 U.S.C.
§ 1227(a)(2)(C). Accordingly, this conviction does not disqualify Flores Abarca
Case: 17-60236 Document: 00515081008 Page: 2 Date Filed: 08/19/2019
No. 17-60236
from seeking cancellation of removal. We grant the petition for review, vacate
the BIA’s order, and remand for further proceedings.
I.
Flores Abarca is a native and citizen of Mexico. He entered the United
States unlawfully in 1988, when he was five years old. He currently lives in
Oklahoma and has four U.S. citizen children. In January 2004, Flores Abarca
pleaded guilty to the Oklahoma misdemeanor offense of transporting a loaded
firearm in a motor vehicle. See OKLA. STAT. tit. 21 § 1289.13. In May 2015,
the Department of Homeland Security initiated removal proceedings against
Flores Abarca, alleging that he was present in the United States without
having been admitted or paroled. The Notice to Appear was personally served
on Flores Abarca and instructed him to appear before an immigration judge in
Dallas at a date and time to be set. Flores Abarca later received a notice of
hearing with a specific date and time, and he personally appeared in Dallas
immigration court on October 19, 2015. At this hearing, Flores Abarca
acknowledged receipt of the Notice to Appear, conceded his removability, and
stated that he wished to seek cancellation of removal.
Cancellation of removal is a form of relief available to certain otherwise
removable aliens. See 8 U.S.C. § 1229b. To be eligible for this relief, a
nonpermanent resident such as Flores Abarca must (1) have been continuously
physically present in the United States for at least 10 years; (2) demonstrate
good moral character during this period; (3) not be convicted of an offense
under 8 U.S.C. § 1182(a)(2), § 1227(a)(2), or § 1227(a)(3); and (4) “establish[]
that removal would result in exceptional and extremely unusual hardship to
the alien’s spouse, parent, or child, who is a citizen of the United States or an
alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1).
Flores Abarca requested cancellation of removal based on hardship to his
four young children and his ailing lawful permanent resident parents. The
2
Case: 17-60236 Document: 00515081008 Page: 3 Date Filed: 08/19/2019
No. 17-60236
immigration judge asked for the government’s views regarding Flores Abarca’s
eligibility in light of his firearm transportation conviction. The government
stated that it believed Flores Abarca was eligible for cancellation of removal,
and that it did not believe that his firearm transportation conviction fell under
the statute’s firearms provision. The immigration judge nonetheless expressed
concern about this conviction and ordered further briefing on the issue. In its
brief, the government revised its original position and argued that Flores
Abarca is ineligible for cancellation of removal because of his firearm
transportation conviction.
After considering the parties’ briefs, the immigration judge held that
Flores Abarca’s conviction for transporting a loaded firearm is a firearms
offense described under 8 U.S.C. § 1227(a)(2)(C) and renders him ineligible for
cancellation of removal as a matter of law. Flores Abarca appealed his order of
removal to the BIA. On March 3, 2017, the BIA affirmed the immigration court
in a published and precedential opinion. See Matter of Flores-Abarca, 26 I & N
Dec. 922 (B.I.A. 2017). Flores Abarca timely moved for reconsideration. While
his motion for reconsideration was pending, Flores Abarca filed a motion to
remand to the immigration court to permit him to apply for adjustment of
status. The BIA denied both motions. Flores Abarca now petitions for review
of the BIA’s decisions.
II.
For the first time on appeal, Flores Abarca seeks to challenge alleged
defects in his Notice to Appear (NTA). This court generally lacks jurisdiction
to consider issues that were not first presented to the BIA. See Omari v. Holder,
562 F.3d 314, 318–19 (5th Cir. 2009); see also 8 U.S.C. § 1252(d) (“A court may
review a final order of removal only if – (1) the alien has exhausted all
administrative remedies available to the alien as of right”). Flores Abarca
nonetheless contends that he can raise this issue at any time because defects
3
Case: 17-60236 Document: 00515081008 Page: 4 Date Filed: 08/19/2019
No. 17-60236
in the NTA undermine the immigration court’s subject matter jurisdiction.
This argument is foreclosed by our precedent. See Pierre-Paul v. Barr, 930 F.3d
684, 693 (5th Cir. 2019) (holding that 8 C.F.R. § 1003.14 is a non-jurisdictional
claim processing rule, defects in which are waivable). Because Flores Abarca
did not properly exhaust this issue, we lack jurisdiction to consider it. We
therefore turn to the merits.
III.
The BIA held that Flores Abarca is ineligible for cancellation of removal
as a matter of law because “the crime of transporting a loaded firearm under
Oklahoma law is categorically a firearms offense under” 8 U.S.C.
§ 1227(a)(2)(C). Flores-Abarca, 26 I & N Dec. at 924. Because the BIA reached
an independent legal conclusion on this question, “our review is confined to the
BIA’s analysis and reasoning.” Enrique-Gutierrez v. Holder, 612 F.3d 400, 407
(5th Cir. 2010). With limited exceptions, we may “only affirm the BIA on the
basis of its stated rationale for ordering an alien removed from the United
States.” Id. The sole issue before us is therefore the purely legal question of
whether Flores Abarca’s Oklahoma firearm transportation conviction is
categorically a disqualifying firearms offense under § 1227(a)(2)(C). We have
jurisdiction to consider this legal issue. See 8 U.S.C. § 1252(a)(2)(D).
A.
We first review the relevant statutory framework. A nonpermanent
resident does not qualify for cancellation of removal if he has “been convicted
of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)” of Title 8 of the
U.S. Code. 8 U.S.C. § 1229b(b)(1)(C). The specific provision at issue in this case
is § 1227(a)(2)(C), which renders deportable “[a]ny alien who at any time after
admission is convicted” of certain firearms offenses. As a threshold matter,
4
Case: 17-60236 Document: 00515081008 Page: 5 Date Filed: 08/19/2019
No. 17-60236
Flores Abarca contends that § 1227(a)(2)(C) does not apply to him because he
was never admitted to the United States. 1
This argument is foreclosed by our precedent. Flores Abarca was not
charged with being removable under § 1227(a)(2)(C). This provision is relevant
to this case only because it is cross-referenced in the cancellation of removal
statute. See § 1229b(b)(1)(C). We have held that this statutory cross-reference
simply “identif[ies] the kinds of offenses that will make an alien ineligible for
cancellation of removal.” Nino v. Holder, 690 F.3d 691, 697 (5th Cir. 2012)
(emphasis added). “For purposes of that ineligibility, it does not matter when
the offense occurred in relation to the alien’s admission.” Id. at 697–98; see also
Aleman v. Holder, 541 F. App’x 457, 459 (5th Cir. 2013) (“Nino v. Holder held
the plain language of § 1229b(b)(1)(C) unambiguously refers to the elements of
the offenses set forth in the three statutes and does not refer to any aspects of
immigration law.”).
Flores Abarca is therefore ineligible for cancellation of removal if he was
convicted of an offense listed in § 1227(a)(2)(C), regardless of whether he had
been admitted to the United States at the time of conviction. This provision
reads in full:
(C) Certain firearm offenses
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.
1 We note that Flores Abarca failed to properly exhaust this issue before the BIA.
See Omari, 562 F.3d at 319. Yet, as the government recognizes, exhaustion is not required
when the BIA has no power to grant the requested relief because of binding circuit precedent.
See Arce-Vences v. Mukasey, 512 F.3d 167, 172 (5th Cir. 2007). That is the case here.
5
Case: 17-60236 Document: 00515081008 Page: 6 Date Filed: 08/19/2019
No. 17-60236
8 U.S.C. § 1227(a)(2)(C).
The list of offenses in the statute does not include a conviction for
“transporting” a firearm in violation of any law.
The BIA reasoned, however, that “[a] plain reading of the statute makes
‘clear that Congress intended [it] to embrace the entire panoply of firearms
offenses.’” Flores-Abarca, 26 I & N Dec. at 923 (quoting Valerio-Ochoa v. INS,
241 F.3d 1092, 1095 (9th Cir. 2001)). The BIA further held that Flores Abarca
“necessarily had constructive ‘possession’ of the firearm for purposes of”
§ 1227(a)(2)(C) when he violated the Oklahoma firearm transportation statute.
Id. Finally, the BIA opined that “it would be illogical to hold that unlawful
possession of a loaded firearm would fall within the scope of [§ 1227(a)(2)(C)]
but that unlawfully transporting the same weapon would not.” Id. at 924. We
address each rationale in turn.
B.
The government urges us to hold that a plain reading of the statute
demonstrates that Congress intended § 1227(a)(2)(C) “to apply broadly to any
type of firearm offense.” Alternatively, the government asks us to accord
Chevron deference to the BIA’s view that the statute encompasses “firearms
offenses of any type.” Although this expansive reading would certainly simplify
our analysis, we decline the government’s invitation to rewrite the statutory
text.
We review the BIA’s “legal conclusions de novo unless a conclusion
embodies the Board’s interpretation of an ambiguous provision of a statute
that it administers.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). In
the latter situation, a precedential decision by the BIA “is entitled to the
deference prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense
Council, 467 U.S. 837 (1984).” Ali v. Lynch, 814 F.3d 306, 309 (5th Cir. 2016)
(cleaned up). “If Congress has explicitly left a gap for the agency to fill, there
6
Case: 17-60236 Document: 00515081008 Page: 7 Date Filed: 08/19/2019
No. 17-60236
is an express delegation of authority to the agency to elucidate a specific
provision of the statute by regulation.” Orellana-Monson v. Holder, 685 F.3d
511, 517 (5th Cir. 2012) (quoting Chevron, 467 U.S. at 843–44). Before
according an agency Chevron deference, however, the “court must determine
first whether Congress has directly spoken to the question at issue.” Id. “If so,
the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress.” Id.
The BIA’s decision in this case is published and precedential, and thus
eligible for Chevron deference. See Flores-Abarca, 26 I & N Dec. 922. But
neither the BIA nor the government on appeal identify any ambiguity in the
firearms offense provision. The BIA instead relied on its “plain reading of the
statute.” Id. at 923. “Chevron deference must be reflective, not reflexive.”
Forrest Gen. Hosp. v. Azar, 926 F.3d 221, 228 (5th Cir. 2019). Absent statutory
ambiguity, the government may not invoke Chevron to shield agency reasoning
from judicial scrutiny. Id.; Orellana-Monson, 685 F.3d at 517.
The text of § 1227(a)(2)(C) is neither vague nor unclear. Rather, it
unambiguously renders a large number of firearms convictions grounds for
deportation. The provision applies to any alien, including legal permanent
residents, convicted of “purchasing, selling, offering for sale, exchanging,
using, owning, possessing, or carrying . . . a firearm or destructive device,” or
“of attempting or conspiring” to commit any of these offenses. 8 U.S.C.
§ 1227(a)(2)(C). Contrary to the government’s position, however, the statute
does not state that “any type of firearm offense” is a basis for deportation. Nor
does the statute on its face reach “the entire panoply of firearms offenses.”
Flores-Abarca, 26 I & N Dec. at 923 (quotation omitted). If that were Congress’s
intent, it could easily have said so. The same statute, for example, renders
deportable any alien convicted of violating “any law or regulation of a State,
the United States, or a foreign country relating to a controlled substance (as
7
Case: 17-60236 Document: 00515081008 Page: 8 Date Filed: 08/19/2019
No. 17-60236
defined in section 802 of Title 21),” with a narrow exception for personal
marijuana possession. 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added).
Congress could have used the same language to render deportable any
alien convicted of violating any law “relating to” a firearm. Instead, Congress
chose to enumerate a list of offenses. See Dep’t of Homeland Security v.
MacLean, 135 S. Ct. 913, 919 (2015) (explaining that “Congress generally acts
intentionally when it uses particular language in one section of a statute but
omits it in another”). Reflecting that choice, the provision is titled “Certain
firearm offenses.” See Yates v. United States, 135 S. Ct. 1074, 1083 (2015)
(explaining that while “headings are not commanding, they supply cues” as to
the intended scope of a statute).
Notably, despite the expansive language of the controlled substance
provision, the Supreme Court has declined to hold that Congress intended to
deport every alien convicted of a drug offense. In Mellouli v. Lynch, the
government argued that “aliens who commit drug crimes in States whose drug
schedules substantially overlap the federal schedules are removable, for state
statutes that criminalize hundreds of federally controlled drugs and a handful
of similar substances, are laws relating to federally controlled substances.” 135
S. Ct. 1980, 1989 (2015) (quotation omitted). The Court rejected this
construction of § 1227(a)(2)(B)(i), explaining that “[t]his sweeping
interpretation departs so sharply from the statute’s text and history that it
cannot be considered a permissible reading.” Id. at 1990. The Court also
refused to adopt the BIA’s view that the statute covers all drug paraphernalia
convictions on the grounds that drug paraphernalia statutes relate to “the drug
trade in general.” Id. at 1988–89. The Court instead held that, “to trigger
removal under § 1227(a)(2)(B)(i), the Government must connect an element of
the alien’s conviction to a drug ‘defined in [§ 802].’” Id. at 1991.
8
Case: 17-60236 Document: 00515081008 Page: 9 Date Filed: 08/19/2019
No. 17-60236
The same logic applies here. A firearm conviction cannot trigger
deportation or ineligibility for cancellation of removal under § 1227(a)(2)(C)
unless it fits within one of the statutorily enumerated offenses. This
construction is consistent with our prior applications of this statute, as well as
that of other circuits. See Segovia-Rivas v. Lynch, 643 F. App’x 367, 369 (5th
Cir. 2016) (holding that a conviction for “Attempted Deadly Conduct—
Discharge of a Firearm” is categorically an offense covered by § 1227(a)(2)(C)
because “[d]ischarging a firearm clearly involves use of a firearm”) (emphasis
added); Aybar-Alejo v. INS, 230 F.3d 487, 488–89 (1st Cir. 2000) (explaining
that a conviction for firearm possession under Rhode Island law is not broader
than possession under federal law); Lopez-Amaro v. INS, 25 F.3d 986, 989–90
(11th Cir. 1994) (holding that “first degree murder with a pistol” qualifies as
“using a firearm in violation of any law”).
The government contends that several other circuits have interpreted
§ 1227(a)(2)(C) more expansively to “embrace the entire panoply of firearms
offenses.” Valerio-Ochoa, 241 F.3d at 1095; see also Kuhali v. Reno, 266 F.3d
93, 103 (2d Cir. 2001); Hall v. INS, 167 F.3d 852, 855 (4th Cir. 1999). The cases
cited do include some broad language regarding the scope of the firearms
provision. But our sister circuits took care to locate the petitioner’s particular
conviction within one of the enumerated offenses. See Valerio-Ochoa, 241 F.3d
at 1095–96 (explaining that a conviction for “willfully discharg[ing] a firearm”
clearly “qualifies as ‘using’ a firearm under 8 U.S.C. § 1227(a)(2)(C)”); Kuhali,
266 F.3d at 105 (finding that exporting firearms without a license involves
“possessing” a firearm because “the power to send or take a commodity out of
the country necessarily implies—because of the exercise of dominion or
control—at least constructive possession”); Hall, 167 F.3d at 856 (holding that
a conviction for making false statements in connection with the acquisition of
a firearm was a conviction for “purchasing or attempting to purchase” a firearm
9
Case: 17-60236 Document: 00515081008 Page: 10 Date Filed: 08/19/2019
No. 17-60236
under § 1227(a)(2)(C) because the petitioner “participated in and enabled an
unlawful purchase of a firearm”). These cases do not stand for the proposition
that either the BIA or the courts are free to disregard the statute’s list of
enumerated offenses.
Despite its own broad language, the BIA similarly went on to consider
whether Flores Abarca’s firearm transportation offense is a conviction for
“possessing” a firearm under § 1227(a)(2)(C). See Flores-Abarca, 26 I & N Dec.
at 923. We now review that determination.
C.
Flores Abarca is ineligible for cancellation of removal if he was “convicted
under any law of . . . possessing . . . a firearm or destructive device.” 8 U.S.C.
§ 1227(a)(2)(C). The BIA held that Flores Abarca “necessarily had constructive
‘possession’ of the firearm” when he “knowingly and willfully transported” it in
his vehicle, and “conclude[d] that the crime of transporting a loaded firearm
under Oklahoma law is categorically a firearms offense under the Act.” Flores-
Abarca, 26 I&N Dec. at 923–24. Our analysis of federal and Oklahoma law
compels a different conclusion.
Like the BIA, we must analyze Flores Abarca’s conviction under the
categorical approach. See Moncrieffe v. Holder, 569 U.S. 184, 192 (2013);
Segovia-Rivas, 643 F. App’x at 369. “Because Congress predicated deportation
on convictions, not conduct, the approach looks to the statutory definition of
the offense of conviction, not to the particulars of an alien’s behavior.” Mellouli,
135 S. Ct. at 1986 (quotation omitted). “[A] state offense is a categorical match
with a generic federal offense only if a conviction of the state offense
necessarily involved facts equating to the generic federal offense.” Moncrieffe,
569 U.S. at 190 (cleaned up). “[W]e are to look to the conviction itself as our
starting place, not to what might have or could have been charged.” Carachuri-
Rosendo v. Holder, 560 U.S. 563, 576 (2010). In the context of a guilty plea, a
10
Case: 17-60236 Document: 00515081008 Page: 11 Date Filed: 08/19/2019
No. 17-60236
conviction is a categorical match “only if the defendant ‘necessarily admitted
[the] elements of the generic offense.’” Descamps v. United States, 570 U.S. 254,
262 (2013) (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)).
Because we find that § 1227(a)(2)(C) “is unambiguous according to its
plain language with respect to the question presented,” we review the BIA’s
legal conclusions de novo. Miresles-Zuniga v. Holder, 743 F.3d 110, 112 (5th
Cir. 2014). We also review de novo the BIA’s interpretation of Flores Abarca’s
Oklahoma offense, as “[d]etermining a particular federal or state crime’s
elements lies beyond the scope of the BIA’s delegated power or accumulated
expertise.” Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002); see also
Sarmientos v. Holder, 742 F.3d 624, 627 (5th Cir. 2014) (“[N]o deference is
afforded in reviewing the BIA’s interpretation of state criminal law.”).
We first outline the elements of the generic federal offense of unlawful
firearm possession. Under federal law, “possession” includes constructive
possession. See Henderson v. United States, 135 S. Ct. 1780, 1784 (2015); see
also Aybar-Alejo, 230 F.3d at 488–89 (collecting cases). “Actual possession
exists when a person has direct physical control over a thing,” whereas
“[c]onstructive possession is established when a person, though lacking such
physical custody, still has the power and intent to exercise control over the
object.” Henderson, 135 S. Ct. at 1784. Yet mere possession of a firearm is not
a criminal offense. 2 See District of Columbia v. Heller, 554 U.S. 570, 636 (2008).
“Assuming compliance with ordinary licensing requirements, the possession of
a gun can be entirely innocent.” Rehaif v. United States, 139 S. Ct. 2191, 2197
(2019). The plain meaning of “possessing . . . a firearm . . . in violation of any
2 Although Congress has restricted the rights of unlawfully present aliens to
possess firearms, the offenses listed in § 1227(a)(2)(C) apply to any alien, including legal
permanent residents. See, e.g., Valerio-Ochoa, 241 F.3d at 1094.
11
Case: 17-60236 Document: 00515081008 Page: 12 Date Filed: 08/19/2019
No. 17-60236
law” under § 1227(a)(2)(C) therefore requires that the possession be in some
respect unlawful.
The parties agree that the elements of Flores Abarca’s Oklahoma offense
are: (1) knowingly; (2) willfully; (3) transporting; (4) a specified firearm; (5)
that is loaded; (6) in the interior/(locked exterior compartment)/trunk; (7) of a
motor vehicle; (8) on a public highway or roadway. See Okla. Unif. Jury Instr.
CR 6-37A; see also Flores-Abarca, 26 I & N Dec. at 923. These elements do not
include possession, much less unlawful possession. 3 On its face, the statute is
therefore not a categorical match to the generic federal offense of unlawful
firearm possession. See Moncrieffe, 569 U.S. at 190.
To resist this conclusion, the government argues that Flores Abarca’s act
of transporting a loaded firearm necessarily encompassed the possession or
constructive possession of a firearm. The parties have not briefed the issue of
whether an element of possession is sufficient to transform a conviction for a
different firearms offense into a conviction for possessing a firearm within the
meaning of § 1227(a)(2)(C). We have some doubts about this assumption. 4 Even
accepting the government’s framing of the issue, however, it is not the case
that the Oklahoma offense of transporting a loaded firearm requires that the
defendant actually or constructively possess a firearm.
3 Oklahoma law recognizes separate offenses of unlawful firearm possession.
See, e.g., OKLA. STAT. tit. 21 § 1280.1 (possession of a firearm on school property); § 1283
(possession of a firearm by a convicted felon). A conviction for one of these offenses does
require proof of possession. See Okla. Unif. Jury Instr. CR 6-37 (outlining the elements of
“unlawful possession of a firearm” as (1) knowing; (2) willful; (3) possession of/having under
one’s immediate control; (4) a specified firearm; and (5) the specific ground for unlawfulness).
4 We note that construing a conviction for “possessing” a firearm under
§ 1227(a)(2)(C) to include firearm convictions involving lawful possession plus an illegal act
might render superfluous many of the other enumerated offenses, including “using,” and
“carrying” a firearm. See Bailey v. United States, 516 U.S. 137, 146 (1995) (adopting a limited
reading of “use” of a firearm to avoid creating redundancy with the term “carry”).
12
Case: 17-60236 Document: 00515081008 Page: 13 Date Filed: 08/19/2019
No. 17-60236
The term “transport” does not necessarily imply possession. The driver
of a vehicle can transport passengers and their possessions without having the
“power and intent to exercise control over” every object in the vehicle.
Henderson, 135 S. Ct. at 1784. As we have been clear, “dominion over the
vehicle . . . alone cannot establish constructive possession of a weapon found in
the vehicle, particularly in the face of evidence that strongly suggests that
somebody else exercised dominion and control over the weapon.” United States
v. Wright, 24 F.3d 732, 735 (5th Cir. 1994); see also United States v. Melancon,
662 F.3d 708, 713 (5th Cir. 2011) (“Where two people jointly occupy a space,
dominion over the space is not enough by itself to establish constructive
possession.”). Although knowledge of a firearm’s presence may be evidence of
possession, knowing transportation does not conclusively establish
constructive possession as a matter of law. See Wright, 24 F.3d at 735
(explaining that “whether constructive possession exists is not a scientific
inquiry” and requires “a common sense, fact-specific approach”); United States
v. Crain, 33 F.3d 480, 486–87 (5th Cir. 1994) (finding insufficient evidence that
defendant driver exercised constructive possession over drugs found in the
vehicle).
Oklahoma’s criminal prohibition against transporting loaded firearms in
vehicles clearly extends to firearms possessed by passengers. At the time of
Flores Abarca’s offense, the relevant statute read as follows:
Except as otherwise provided by . . . another provision of law
of this state, it shall be unlawful to transport a loaded pistol, rifle,
or shotgun in any landborne motor vehicle over a public highway
or roadway. However, a rifle or shotgun may be transported when
clip or magazine loaded and not chamber loaded when transported
in an exterior locked compartment of the vehicle or trunk of the
vehicle.
Any person convicted of a violation of this section shall be
punished as provided in Section 1289.15 of this title.
13
Case: 17-60236 Document: 00515081008 Page: 14 Date Filed: 08/19/2019
No. 17-60236
Any person who is the operator of a vehicle or is a passenger
in any vehicle wherein another person who is licensed pursuant to
the Oklahoma Self-Defense Act, Sections 1 through 25 of this act,
to carry a concealed handgun and is carrying a concealed handgun
or has concealed the handgun in such vehicle, shall not be deemed
in violation of the provisions of this section provided the licensee
is in or near the vehicle.
OKLA. STAT. tit. 21 § 1289.13 (2003).
The statute’s final paragraph protects a driver from liability if his
passenger has a concealed carry license. But a driver would have no such safe
harbor if he knowingly gave a ride to an armed passenger who lacked a
concealed carry license. Even in cases where a defendant does have possession
of a firearm as a factual matter, Oklahoma is never required to prove
possession or constructive possession to obtain a conviction under this statute.
Flores Abarca thus did not “necessarily admit[] the elements of the generic
offense” of unlawful firearm possession by pleading guilty to this Oklahoma
transportation offense. Descamps, 570 U.S. at 262 (quotation omitted).
The BIA’s contrary conclusion relied on a statement in United States v.
Bass, that “virtually all transportations, whether interstate or intrastate,
involve an accompanying possession or receipt.” 404 U.S. 336, 340 (1971);
Flores-Abarca, 26 I & N Dec. at 924. This factual observation regarding the
frequent overlap between transportation and possession offenses does not alter
our analysis. The question presented in Bass was whether the federal
prohibition on felons possessing, receiving, or transporting firearms requires
proof of a connection to interstate commerce in every case. 404 U.S. at 339. The
Court held that “the phrase ‘in commerce or affecting commerce’ is part of all
three offenses” rather than modifying only the transport offense. Id. at 347.
The Supreme Court did not hold that the prohibition against felons
transporting a firearm is redundant of the prohibition against possession, nor
14
Case: 17-60236 Document: 00515081008 Page: 15 Date Filed: 08/19/2019
No. 17-60236
that all federal transportation offenses require proof of possession. 5 Such
holdings would have been consequential for federal criminal law, increasing
the government’s burden of proof in transportation prosecutions and
introducing redundancy in the federal criminal code. See, e.g., 18 U.S.C.
§ 922(g), (h)(1), (k). But that was not the issue presented in Bass, and it is not
the issue the Court decided.
Importantly, the Supreme Court’s later decision in Muscarello v. United
States, 524 U.S. 125 (1998), makes clear that transportation offenses remain
distinct from possession offenses. The Court in Muscarello held that the phrase
“carries a firearm” in 18 U.S.C. § 924(c)(1) “applies to a person who knowingly
possesses and conveys firearms in a vehicle, including in the locked glove
compartment or trunk of a car, which the person accompanies.” Id. at 126–27.
In a dissenting opinion, Justice Ginsburg argued that this definition better
describes the term “transport” than the term “carry.” Id. at 146–48. 6 She noted
that other federal statutes use the term “transport” rather than “carry” to
“describ[e] when and how a person may travel in a vehicle that contains his
firearms.” Id. at 146–47 (citing 18 U.S.C §§ 925(a)(2)(B) and 926A). A majority
of the Court disagreed, explaining that its “definition does not equate ‘carry’
and ‘transport.’” Id. at 134. “‘Carry’ implies personal agency and some degree
5 We were not aided by the government’s briefing on this point, which incorrectly
attributed language from Malilia v. Holder, 632 F.3d 598, 604 (9th Cir. 2011) to Bass itself.
This inaccurate citation was inquired into, but not corrected, at oral argument. We should
not need to remind the government that, although we are bound by the precedent of the
Supreme Court, we are not bound by another circuit’s interpretation of that precedent. In
any event, we do not find support in Bass for the proposition that “establishing that a firearm
traveled interstate necessarily requires some element of possession.” Malilia, 632 F.3d at
604. We similarly part ways with the Second Circuit’s interpretation of Bass to imply an
element of possession in transportation offenses. See Kuhali, 266 F.3d at 105.
6 The Eighth Circuit expressed a similar view in a case predating Muscarello.
See United States v. Richards, 967 F.2d 1189, 1195 (8th Cir. 1992) (construing “the ordinary
meaning of the term ‘transport’ . . . as involving an element of possession and an element of
movement”).
15
Case: 17-60236 Document: 00515081008 Page: 16 Date Filed: 08/19/2019
No. 17-60236
of possession, whereas ‘transport’ does not have such a limited connotation and,
in addition, implies the movement of goods in bulk over great distances.” Id.
(emphasis added).
This distinction is fully consistent with our construction of the Oklahoma
statute at issue in this case. Although carrying a firearm requires “some degree
of possession,” transporting a firearm does not. Id. The government attempts
to distinguish Muscarello by arguing that the Supreme Court understood
“transport” to refer only to the “movement of goods in bulk,” whereas Flores
Abarca’s Oklahoma transportation offense is more akin to “carrying.” Id. This
argument is unavailing. The Supreme Court discussed several statutes that
apply the term “transport” to single firearms. See id. at 134–36; see also 18
U.S.C § 924(b) (imposing criminal penalties on someone who “transports . . . a
firearm” with intent to commit a felony). Notably, the statute most central to
the disagreement between the majority and the dissent, 18 U.S.C. § 926A, uses
the term “transport” in precisely the same context as the Oklahoma statute at
issue here. See id. (providing that individuals are “entitled to transport a
firearm for any lawful purpose,” so long as “during such transportation the
firearm is unloaded” and not “directly accessible from the passenger
compartment of such transporting vehicle”). The Court specifically addressed
§ 926A and reiterated its conclusion that “the word ‘transport’ is broader than
the word ‘carry.’” Muscarello, 524 U.S. at 135. We have no basis to conclude
that the term “transport” has a different meaning under Oklahoma law than
under federal law. 7
7 The government represented at oral argument that its briefing and the BIA’s
opinion had relied on Oklahoma caselaw interpreting transportation to require an element
of constructive possession. As the government commendably acknowledged in a post-
argument letter to the court, this representation was mistaken. The government’s letter
belatedly points us to a decision from the Oklahoma Court of Criminal Appeals, Allen v. State,
871 P.2d 79 (Okla. Crim. App. 1994), as support for its position. We emphasize that “[t]he
16
Case: 17-60236 Document: 00515081008 Page: 17 Date Filed: 08/19/2019
No. 17-60236
We acknowledge that our analysis is in tension with the outcome reached
by the Eighth Circuit in Awad v. Gonzales, 494 F.3d 723 (8th Cir. 2007). Awad,
a legal permanent resident and “a sport hunter lawfully hunting,” was cited
for transporting a loaded hunting rifle in his vehicle. Id. at 724. The BIA held
that this misdemeanor game and fish law violation rendered Awad deportable
under § 1227(a)(2)(C). Id. at 724–25. Awad petitioned for review, arguing that
his hunting rifle fell within an exception to the federal definition of a firearm.
Id. at 725. The court rejected this argument and affirmed. Id. at 726–27. The
issue of whether § 1227(a)(2)(C) encompasses transportation offenses was
apparently not raised before the Eighth Circuit, and the court did not squarely
address it. Instead, the court deferred to the BIA without examining the
specific offenses enumerated in § 1227(a)(2)(C) or identifying any ambiguity in
the statutory language. Id. at 725. We therefore do not find Awad persuasive
as to the question presented in this appeal.
In sum, we hold that Flores Abarca’s misdemeanor conviction for
unlawfully transporting a loaded firearm in a motor vehicle does not include
unlawful possession as a necessary element and does not categorically match
an offense listed under 8 U.S.C. § 1227(a)(2)(C).
proper time to closely examine the record and develop legal defenses is before the completion
of briefing,” not after oral argument. United States v. Arellano-Banuelos, 912 F.3d 862, 865
n.2 (5th Cir. 2019). Even if the government’s new argument were properly before us, it would
not affect our conclusion. The defendant in Allen was charged with “carrying a loaded
firearm.” 871 P.2d at 102. The Oklahoma Court of Criminal Appeals reversed this conviction,
explaining that simple possession of a firearm is not a crime. Id. at 103. To constitute a crime,
the “carrying” must be unlawful in some additional way, such as “carrying a loaded firearm
in a vehicle” or “carrying any firearm after conviction of a felony.” Id. The Oklahoma court
did not, however, hold that “carrying” a firearm is the only means to commit the offense of
unlawful transportation of a firearm in a motor vehicle. Rather, its decision is consistent with
the proposition that “‘transport’ is a broader category that includes ‘carry’ but also
encompasses other activity.” Muscarello, 524 U.S. at 135.
17
Case: 17-60236 Document: 00515081008 Page: 18 Date Filed: 08/19/2019
No. 17-60236
D.
Finally, we address the BIA’s view that omitting firearm transportation
offenses from the scope of § 1227(a)(2)(C) is “illogical” and inconsistent with
legislative history. Flores-Abarca, 26 I&N Dec. at 924. The BIA observes that,
in the original version of the statute, “only the crimes of ‘possessing or carrying’
a firearm were a basis for deportation.” Id. “Subsequent legislation expanded
the deportable offenses to the current extensive list of crimes, as well as
attempts and conspiracies to commit them.” Id. This history, however, can be
read in multiple ways. On the one hand, Congress may have wished to expand
the reach of § 1227(a)(2)(C) to cover all firearms offenses, and simply neglected
to include the term “transporting” when amending the statute. Such an
oversight would be somewhat surprising, as federal criminal law extensively
regulates the transportation of firearms. See, e.g., 18 U.S.C. § 922(a)(1)–(5), (i),
(n), § 924(b). On the other hand, Congress may have made a deliberate choice
to add some firearms offenses but not others. Regardless, “[w]e cannot replace
the actual text with speculation as to Congress’ intent.” Magwood v. Patterson,
561 U.S. 320, 334 (2010).
Nor can we substitute either the BIA’s policy views or our own judgment
for that of Congress. See Rodriguez v. United States, 480 U.S. 522, 525–26
(1987). Congress clearly intended to render deportable most aliens convicted of
gun crimes, but it chose to effectuate this goal by specifying a list of offenses.
“Legislation is, after all, the art of compromise, the limitations expressed in
statutory terms often the price of passage, and no statute yet known pursues
its stated purpose at all costs.” Henson v. Santander Consumer USA Inc., 137
S. Ct. 1718, 1725 (2017) (cleaned up). We must therefore “presume that a
legislature says in a statute what it means and means in a statute what it says
there.” Connecticut National Bank v. Germain, 503 U.S. 249, 253–54 (1992).
18
Case: 17-60236 Document: 00515081008 Page: 19 Date Filed: 08/19/2019
No. 17-60236
“[W]hen the statute’s language is plain, the sole function of the courts—
at least where the disposition required by the text is not absurd—is to enforce
it according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters
Bank, N.A., 530 U.S. 1, 6 (2000) (cleaned up). Here, a plain reading of the
statute produces no absurd results. The BIA maintains that it would be
“illogical to hold that unlawful possession of a loaded firearm would fall within
the scope of [§ 1227(a)(2)(C)] but that unlawfully transporting the same
weapon would not.” Flores-Abarca, 26 I&N Dec. at 924. We disagree. As
previously emphasized, firearms are not inherently illicit. An individual can
commit a transportation offense even if transporting a legally-owned firearm
from one lawful location to another, for an entirely lawful purpose. See, e.g.,
Awad, 494 F.3d at 724 (noting that Awad was “a sport hunter lawfully hunting”
when he was cited for transporting a loaded hunting rifle). Moreover, mere
transportation lacks the elements of unlawful possession or use that can make
firearm offenses particularly dangerous. See, e.g., Muscarello, 524 U.S. at 135–
36 (noting that Congress “impose[d] a less strict sentencing regime” on firearm
transport offenses under 18 U.S.C. § 924(b) than firearm carrying offenses
under § 924(c)).
It is thus rational for Congress to treat unlawful firearm transportation
differently from unlawful possession. We also note that § 1227(a)(2)(C) is not
the sole removal provision applicable to firearms offenses. Congress has
separately designated certain serious firearm transportation offenses as
aggravated felonies, including transporting a firearm with the intent to
commit a felony. See 8 U.S.C. § 1101(43)(E)(ii); see also 18 U.S.C. § 922(g)(1)–
(5); § 922(n); § 924(b). An alien convicted of one of these offenses is deportable
under § 1227(a)(2)(A)(iii), notwithstanding our construction of § 1227(a)(2)(C).
The statutory scheme as a whole does not create any illogical gaps in
immigration enforcement.
19
Case: 17-60236 Document: 00515081008 Page: 20 Date Filed: 08/19/2019
No. 17-60236
IV.
Flores Abarca’s Oklahoma firearm transportation conviction is not an
offense under 8 U.S.C. § 1227(a)(2)(C) and does not render him statutorily
ineligible for cancellation of removal. In light of this holding, we need not reach
the question of whether the BIA abused its discretion in denying Flores
Abarca’s motions for reconsideration and remand.
We GRANT the petition for review, VACATE the decision of the BIA,
and REMAND for further proceedings not inconsistent with this opinion.
20