Interim Decision #3189 

MATTER OF RODRIGUEZ-CORTES 

In Deportation Proceedings 

A-35913271 

Decided by Board October 19, 1992 

(1) The sentence enhancement provision of section 12022(a) of the California Penal 

Code, which allows for the imposition of an additional and consecutive term of 

imprisonment upon a person convicted of a felony where any one of the principals of 

the felony was armed with a firearm, does not create a separate offense, but rather 

imposes additional punishment, and therefore does not constitute a conviction under 

California law. 

(2) An alien, who was convicted of five counts of attempted murder in the second degree 

and whose sentence under one count was enhanced pursuant to section 12022(a) of the 

California Penal Code because a codefendant was armed with a firearm in the 

attempted commission of the felony, has not been convicted of a firearm offense 

under California law and is not deportable under section 241(a)(2)(C) of the 

Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. III 1991), as an 

alien convicted at any time after entry of a firearm violation. 

(3) An alien whose sentence enhancement pursuant to section 12022(a) of the California 

Penal Code is not a conviction under California law and who is not deportable under 

section 241(a)(2)(C) of the Act, as an alien convicted at any time after entry of a 

firearm violation, is eligible to apply for a waiver of inadmissibility under section 

212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. III 1991). 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2)(A)(iii) [8 U.S.C. § 1251(a)(2)(A)(iii)j—Convicted of 

aggravated felony 

Sec. 241(a)(2)(C) [8 U.S.C. § 1251(a)(2)(C)]—Convicted of firearms violation 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Pro se Kee C. Ling 

General Attorney 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated February 27, 1992, the immigration judge found 

the respondent deportable on her own admissions under section 

241(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1251(a)(2)(A)(iii) (Supp. III 1991), as an alien convicted of an 

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aggravated felony at any time after entry, and under section 

241(a)(2)(C) of the Act, as an alien convicted at any time after entry of 

a firearm violation. The immigration judge further ordered the 

respondent deported from the United States to Mexico. The respondent timely appealed from that decision. The respondent's request for 

oral argument before the Board is denied as a matter of discretion. See 

8 C.F.R. § 3.1(e) (1992). The appeal will be sustained and the record 

will be remanded for further proceedings. 

The respondent is a female native and citizen of Mexico, who was 

admitted to the United States as an immigrant on November 4, 1977. 

On November 9, 1988, the respondent and two other individuals were 

principally charged in a five-count information of attempted willful, 

deliberate, premeditated murder of five individuals in violation of 

sections 664 and 187(a) of the California Penal Code. The respondent 

was accused under the name of Ana Cortez, and she was named in all 

five counts. The information also alleged in the five counts that the 

respondent's codefendant personally used a firearm within the meaning of sections 1203.06(a)(1) and 12022.5 of the California Penal Code 

in the commission and attempted commission of the charged offenses, 

causing the offenses to become serious felonies pursuant to section 

1192.7(c)(8) of the California Penal Code. Additionally, the information stated in special allegations in the five counts that a principal in 

the attempted murder offenses was armed with a firearm, namely a 

handgun, in the commission and attempted commission of the 

offenses, with such arming not being an element of the charged 

offenses within the meaning of section 12022(a) of the California 

Penal Code. 

On June 15, 1989, the respondent was convicted by pleas of nolo 

contendere in the Superior Court of California, County of Los Angeles, 

of five counts of attempted murder in the second degree, a felony, in 

violation of sections 664 and 187(a) of the California Penal Code. The 

respondent was sentenced to 5 years in prison for count one with 7-

year concurrent terms for the other four counts. The conviction record 

in evidence reflects that the respondent's 5-year sentence for count one 

was enhanced by 1 year for a total term of 6 years pursuant to section 

12022(a) of the California Penal Code, predicated on a finding that 

one of the principal codefendants was armed with a firearm in the 

attempted commission of the felony offense. 

In an Order to Show Cause, Notice of Hearing, and Warrant for 

Arrest of Alien (Form I-221S) dated January 3, 1992, the respondent 

was charged with deportability under sections 241(a)(2)(A)(iii) and (C) 

of the Act. A hearing commenced before the immigration judge on 

February 27, 1992, where the respondent, who was unrepresented by 

counsel, admitted the five factual allegations contained in the Order to 

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Interim Decision #3189 

Show Cause. Based on the respondent's admissions and the conviction 

record, the immigration judge found her deportable as charged. There 

was no issue that the respondent had attained the 7 consecutive years 

of lawful permanent residence required for a waiver of inadmissibility 

under section 212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. III 1991). 

However, the immigration judge found the respondent ineligible to 

apply for section 212(c) relief based on the charge of deportability for a 

firearm offense under section 241(a)(2)(C) of the Act. The respondent 

did not apply for any other relief. On appeal, the respondent contests 

only the immigration judge's finding that she is ineligible for a section 

212(c) waiver. 

In order to determine if the respondent is eligible for a section 

212(c) waiver of inadmissibility, we must address the question whether 

she is deportable pursuant to section 241(a)(2)(C) of the Act. That 

section of the Act provides as follows: 

Any alien who at any time after entry is convicted under any law of purchasing, 

selling, offering for sale, exchanging, using, owning, possessing, or carrying in 

violation of any law, any weapon, part, or accessory which is a firearm or destruetivc 

device (as defined in section 921(a) of title 18, United States Code) is deportable. 

(Emphasis added.) 

The United States Court of Appeals for the Ninth Circuit has held that 

a section 212(c) waiver of inadmissibility which provides for discretionary relief from exclusion does not apply to the deportation ground 

for firearm offenses. See Cabasug v. INS, 847 F.2d 1321 (9th Cir. 

1988); see also Matter of (Hernandez-Casillas, 20 I&N Dec. 262 (BIA 

1990; A.G. 1991) (holding by the Attorney General that an alien 

deportable under section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2) 

(1988), for entry without inspection is not eligible for a section 212(c) 

waiver because there is no comparable ground of exclusion, aff'd, 983 

F.2d 231 (5th Cir. 1993); Matter of Wadud, 19 I&N Dec. 182 

(BIA 1984); Matter of Grarnados, 16 I&N Dec. 726 (BIA 1979) (finding 

that section 212(c) relief is not available to an alien deportable for a 

firearm violation as there is no comparable ground of excludability), 

affd, 624 F.2d 191 (9th Cir. 1980). Thus, the issue in this case is 

whether the respondent was convicted of a firearm violation within the 

meaning of section 241(a)(2)(C) of Act so as to preclude her from 

eligibility to apply for section 212(c) relief. We do not find that such a 

conviction exists here. 

An examination of the respondent's conviction record reveals that 

1 The Board concurs with the immigration judge's finding that the respondent is 

deportable under section 241(a)(2)(A)(iii) of the Act as an alien convicted of an 

aggravated felony at any time after entry. See section 101(a)(43) of the Act, 8 U.S.C. 

§ 1101(a)(43) (Supp. III 1991); Matter of A-A-, 20 I&N Dec. 492 (BIA 1992). 

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her sentence under count one was enhanced by 1 year pursuant to 

section 12022(a) of the California Penal Code based on the finding of 

the special allegation charged in the information that a principal was 

armed with a firearm in the attempted commission of the felony 

offense. Section 12022(a) provides in relevant part: 

[A]ny person who °is armed with a firearm in the commission or attempted 

commissi on of a felony shall, upon conviction of such felony or attempted felony, in 

addition and consecutive to the punishment prescribed for the felony or attempted 

felony of which he or she has been convicted, be punished by an additional term of 

one year, unless such arming is an element of the offense of which he or she was 

convicted. This additional term shall apply to any person who is a principal in the 

commission or attempted commission of a felony if one or more of the principals is 

armed with a firearm, whether or not such person is personally armed with a firearm. 

Cal. Penal Code § 12022(a)(1) (West 1992). 

Section 12022(a) is clearly only an enhancement provision which 

allows for-the imposition of an additional and consecutive term of 

imprisonment where any one of the principals of a felony offense was 

armed with a firearm, regardless of whether the particular defendant 

was persomally armed. The statute also indicates that the act of being 

armed with a firearm may not be an element of the charged offense in 

order for an additional and consecutive term pursuant to section 

12022(a) to be imposed. In examining the increased punishment 

language of section 3 of the Deadly Weapons Act, which is now 

codified in section 12022, the California Supreme Court held that the 

added pumislunent does not create a separate offense, but merely 

imposes additional punishment for the felony committed when a 

principal was armed with a weapon named in the statute. In re Shull, 

146 P.2d 417 (Cal. 1944). The Court of Appeals of California, Third 

Appellate District, also specifically held in People v. Smith, 210 Cal. 

Rptr. 43 (Cal. Ct. App. 1985), that section 12022(a) does not set forth 

a separate offense, but rather constitutes additional punishment for an 

offense for which a person is convicted and to which it applies. 

In the instant case, a firearm offense was not an element of the 

respondent's attempted murder in the second degree conviction under 

count one of the information. The respondent only received additional 

punishment as a result of the court's finding that a principal 

codefendant was armed with a firearm. Thus, the enhancement of her 

sentence by section 12022(a) of the California Penal Code was not a 

conviction for a firearm offense under California law. Given that the 

enhancement by section 12022(a) was not a conviction under California law, it is not a conviction for immigration purposes. We therefore 

conclude that the respondent is not deportable under section 

241(a)(2)(C) of the Act as an alien convicted at any time after entry of 

a firearm -violation. Consequently, she is not barred from applying for 

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section 212(c) relief. Accordingly, the appeal will be sustained and the 

record will be remanded to afford the respondent an opportunity to 

apply for a waiver of inadmissibility pursuant to section 212(c) of the 

Act. 

ORDER: The appeal is sustained and the decision of the 

immigration judge is reversed insofar as it finds the respondent 

deportable under section 241 (a)(2)(C) of the Act and ineligible for 

section 212(c) relief, and it orders the respondent deported from the 

United States to Mexico. 

FURTHER ORDER: The record is remanded to the immigration judge for further proceedings consistent with the foregoing 

opinion and for the entry of a new decision. 

591