Interim Decision #3201 

MATTER OF P-FIn Deportation Proceedings 

A-24716046 

Decided by Board June 9, 1993 

An alien convicted of the first degree felonies of armed burglary and robbery with a 

firearm under sections 810.02 and 812.13 of the Florida Statutes was convicted of 

firearm offenses for the purpose of applying section 241(a)(2)(C) of the Immigration and 

Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. III 1991), where the use of a firearm 

was an essential element of the crimes, i.e., the use of a firearm elevated the crimes to 

first degree felonies and triggered a mandatory minimum sentence as distinguished from 

a statutory sentence enhancement. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2)(C) [8 U.S.C. § 1251(a)(2)(C)I—Convicted of firearms violation 

ON nrnAts,OF RESPONDENT: ON BEHALF OF SERVICE: 

Patricia S. Wihnyk, Esquire Graciela G. Garza 

Florida Institutional Legal General Attorney 

Services,. Inc. 

925 N.W. 56th Terrace, Suite A 

Gainesville, Florida 32605-6413 

BY: Milhollan, Chairman; Morris and Vacca, Board Members. Dissenting Opinion: 

Dunne and Heilman, Board Members. 

The respondent appeals from a decision dated October 22, 1992, in 

which the immigration judge found the respondent deportable as 

charged and ineligible for relief from deportation and ordered hint 

deported to Haiti. The appeal will be dismissed. The request for oral 

argument is denied. 

The respondent is a native and citizen of Haiti who entered the 

United States without inspection in November 1980. On August 28, 

1987, his status was adjusted to that of a lawful permanent resident.' 

According to section 202(d) of the Immigration Reform and Control Act of 1986, 

Pub. L No. 99-603, 100 Stat. 3359, 3404-05, as amended by section 2(i) of the 

Immigration Technical Corrections Amendments of 1988, Pub. L. No. 100-525, 102 

Stat. 2609, 2612, the Attorney General established a record of admission for permanent 

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Interim Decision #3201 

On April 25, 1991, the respondent was convicted of armed burglary of 

a dwelling with a handgun or pistol and armed robbery with a firearm 

in violation of sections 810.02 and 812.13 of the Florida Statutes. On 

April 13, 1992, the Immigration and Naturalization Service issued an 

Order to Show Cause and Notice of Hearing (Form I-221) against the 

respondent, charging him with deportability 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 of a firearm 

offense. At a deportation hearing on October 22, 1992, the respondent, 

through counsel, admitted the allegations in the Order to Show Cause, 

denied deportability, and sought relief from deportation in the form of 

asylum, withholding of deportation, and a waiver of inadmissibility 

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

The immigration judge found the respondent deportable as charged 

and ineligible for the requested relief, giving rise to the instant appeal. 

On appeal, the respondent challenges his deportability and argues 

that his conviction does not preclude him from seeking section 212(c) 

relief or asylum. 

We will first address whether the respondent has been convicted of 

a firearm offense. Section 241(a)(2)(C) of the Act provides for the 

deportability of 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 destructive device (as defined in 

section 921(a) of title 18, United States Code). 

Robbery with a firearm is defined under section 812.13 of the 

Florida Statutes as follows, in pertinent part: 

(1) "Robbery" means the taking of money or other property which may be the 

subject of larceny from the person or custody of another, with intent to either 

permanently or temporarily deprive the person or the owner of the money or other 

property, when in the course of the taking there is the use of force, violence, assault, 

or putting in fear. 

(2)(a) If in the course of committing the robbery the offender carried a firearm or 

other deadly weapon, then the robbery is a felony of the first degree ... _ 

Fla. Stat. Ann. § 812.13 (West 1993). 

Burglary with a firearm is defined as follows under section 810.02 of 

the Florida Statutes, in pertinent part: 

(1) "Burglary" means entering or remaining in a structure or a conveyance with 

the intent to commit an offense therein, unless the premises are at the time open to 

the public or the defendant is licensed or invited to enter or remain. 

residence as of January 1, 1982, for Cuban and Haitian aliens granted adjustment of 

status pursuant to the provisions of section 202. 
Interim Decision #3201 

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term 

of years not exceeding life imprisonment or as provided ... if, in the course of 

committing the offense, the offender: 

(b) Is armed, or arms himself within such structure or conveyance, with 

explosives or a dangerous weapon. 

Fla. Stat. Ann. § 810.02 (West 1992). 

The record reflects that the respondent was charged with burglarizing a home and committing armed robbery within that home. 

According to the criminal information, the respondent was armed with 

a handgun and/or pistol during the commission of the armed burglary 

of a dwelling and was armed with a firearm during the commission of 

the armed robbery.2He was convicted of the first degree felonies of 

armed burglary of a dwelling under Florida Statutes section 810.02 

and armed robbery under section 812.13. 

The respondent's use of a firearm during the commission of the 

robbery and burglary triggered the application of section 775.087(2)(a) 

of the Florida Statutes, which provides for a 3 -year mandatory 

minimum sentence for "[a]ny person who is convicted of ... murder, 

sexual battery, robbery, [or] burglary ... and who had in his 

possession a 'firearm." 

The respondent contends that he has been convicted of violating 

general criminal statutes, i.e., armed robbery and burglary, and that 

firearm use is not an element of these offenses. In support of his 

proposition he cites Matter of Carrillo, 16 I&N Dec. 625 (BIA 1978). 

In Matter of Carrillo the Board held that a conviction for unlawful 

possession of a firearm during the commission of a felony, to wit: 

possession of heroin with intent to distribute, did not constitute a 

violation of a law relating to the illicit possession of a narcotic drug. 

The respondent also cites in support of his proposition Castaneda de 

Esper v. INS, 557 F.2d 79 (6th Cir. 1977), in which an alien convicted 

of misprision of a felony, to wit: conspiracy to possess narcotics, was 

found not to have committed a violation of a law relating to narcotic 

drugs. 

The respondent contends that the deadly weapon element in section 

812.13 of the Florida Statutes (defining robbery) includes a broader 

category of weapons than firearms. The respondent notes that he did 

2COUnt one of the information specifies that the respondent used a handgun in the 

commission of the armed burglary. The armed robbery counts state that the respondent 

was armed with a firearm. In the absence of any evidentiary showing by the respondent 

that the weapon was an antique firearm, we find that the conviction record establishes 

that the respondent used a "firearm," as defined by 18 U.S.C. § 921(a) (1988), in the 

commission of the armed robbery. See United States v. Laroche, 723 F.2d 1541 (11th 

Cir.), cert. denied, 467 U.S. 1245 (1984). 

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Interim Decision #3201 

not receive a sentence enhancement for use of a firearm. See Ha. Stat. 

Ann. § 775.084 (West 1992). Rather, he was sentenced under section 

775.087(2)(a), which provides for a mandatory 3-year minimum 

sentence for use of a weapon during a felony. He contends that the 

mandatory minimum provision exempts any "felony in which the use 

of a weapon or firearm is an essential element," citing section 

775.087(1) of the Florida Statutes? Therefore, he asserts, firearm 

possession is not an element of his conviction. 

The Service argues that the respondent has been convicted of a 

firearm offense. The Service points out that the respondent was 

convicted of first degree felonies, which reflect use of a dangerous 

weapon or explosives for a burglary conviction, and use of a firearm or 

other deadly weapon for an armed robbery conviction. In Wallace v. 

State, 573 So. 2d 1010 (Ha. 1991), the court found that possession of a 

firearm was an essential element of the crime of attempted robbery 

with a firearm. Therefore, it held, the defendant was improperly 

convicted of possession of a firearm during the commission of a 

felony, because the elements of that offense were contained within the 

attempted robbery conviction. The Service also cites Williams v. State, 

517 So. 2d 681 (Ha. 1988), for the proposition that the 3-year 

mandatory minimum sentence provision is limited to persons using a 

firearm or destructive device in the commission of the crime. 

We find merit in the Service's arguments on appeal. Use of a 

firearm or deadly weapon is the element of the respondent's conviction for robbery which elevates it to a first degree offense. See Wallace 

v. State, supra. Furthermore, the respondent's conviction record 

reflects that he was subject to a 3-year mandatory minimum sentence 

for use of a firearm. Such a sentence cannot be imposed unless the 

defendant himself used a firearm or destructive device in the 

commission of the crime. Fla. Stat. Atm. § 775.087(2)(a) (West 1992); 

Sears v. State, 539 So. 2d 1174 (Fla. Dist. Ct. App. 1989) (holding that 

absent a specific jury finding that a firearm was used in the 

commission of the crime, imposition of the 3-year mandatory 

minimum sentence is improper). Imposition of the mandatory minimum sentence is required where the defendant has been convicted of 

use of a firearm. 

The cases cited by the respondent in support of his contention that 

he has not been convicted of a firearm violation are inapposite. 

3 Section 775.087(1) of the Florida Statutes provides for a sentence enhancement 

whenever a person is charged with a felony, except a felony in which the use of a 

weapon or firearm is an essential element, and during the commission of such felony 

the defendant carries, displays, uses, threatens, or attempts to use any weapon or 

firearm, or during the commission of such felony the defendant commits an 

aggravated battery. 
Interim Decision #3201 

Castaneda de Esper v. INS, supra, and Matter of Carrillo, supra, 

involved convictions for misprision of a felony and possession of a 

firearm during the commission of a felony, respectively. Those 

convictions in and of themselves did not relate to narcotics, but could 

be based on any underlying felonious act. Matter of Carrillo, supra, at 

626-27. The underlying narcotic-related acts were separate and distinct 

from the convictions. In the instant case, the respondent has been 

convicted of use of a firearm in the commission of armed burglary and 

robbery. The use of a firearm is not in the nature of an underlying 

offense, but is instead an element of the offense itself, as reflected in 

the elevation of each conviction to the first degree and the triggering of 

a mandatory minimum sentence for firearm use under section 

775.087(2) of the Florida Statutes. 

The mandatory minimum provision at issue in the instant case is 

distinguishable from the sentence enhancement provision discussed in 

Matter of Rodriguez-Cortes, 20 I&N Dec. 587 (BIA 1992). In that case, 

the Board found that the sentence enhancement provision in section 

12022(a) of the California Penal Code was not an element of the 

offense and could not be imposed where use of a firearm is an element 

of the offense. Imposition of a sentence enhancement under section 

12022(a) does not create a separate offense under California law, but is 

rather an additional punishment imposed on the defendant. Matter of 

Rodriguez-Cortes, supra, at 590. 

Florida law similarly provides that a sentence enhancement may not 

be imposed where firearm use is an element of the offense. Fla. Stat. 

Ann. § 775.087(1) (West 1992). However, the mandatory minimum 

provision is separate and distinct from the sentence enhancement 

provision. Williams v. State, supra; Aikens v. State, 423 So. 2d 593 

(Fla. Dist. Ct. App. 1982). 

The respondent correctly asserts that section 775.087(1) prohibits 

sentence enhancement where the use of a firearm is an essential 

element of the offense. However, the respondent was not sentenced 

pursuant to that provision, and it is irrelevant to the instant case. We 

conclude that the respondent is deportable as charged. 

The respondent next argues that he is eligible for section 212(c) 

relief notwithstanding his conviction for a firearm offense. The 

respondent is ineligible for section 212(c) relief for the reasons stated 

in Matter of Montenegro, 20 I&N Dee. 603 (BIA 1992); see also Matter 

of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991), affd, 

983 F.2d 231 (5th Cir. 1993). 

Finally, the respondent contends that his convictions do not 

preclude him from seeking asylum. In Matter of Carballe, 19 I&N Dec. 

357 (BIA 1986), this Board found that armed robbery under the 

Florida Statutes was a per se particularly serious crime. As an alien 

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Interim Decision #3201 

convicted of a particularly serious crime, the respondent is ineligible 

for asylum. 8 C.F.R. § 208.14(c)(1) (1993). 

Based on the foregoing, the appeal will be dismissed. 

ORDER; The appeal is dismissed. 

DISSENTING OPINION: Michael J. Heilman, Board Member 

I respectfully dissent. 

In my view, the respondent has not been convicted of any firearms 

offense which would bar him from relief under section 212(c) of the 

Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. III 1991). 

It is undisputed that the respondent was convicted of "Robbery" 

under section 812.13 of the Florida Statutes. This statute describes 

robbery as the taking of money or other property, "when in the course 

of the taking there is the use of force, violence, assault, or putting in 

fear." Fla. Stat. Ann. § 812.13(1) (West 1993). Subsection (2)(a) states 

that if the robber carried a firearm, then the robbery is "a felony of the 

first degree." Fla. Stat. Ann. § 812.13(2)(a) (West 1993). 

The respondent argues, I believe correctly, that a conviction for this 

offense does not constitute a firearms conviction within the meaning 

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

1991). As the respondent states on appeal: 

The deadly weapon element of the crimes of both armed robbery and armed burglary 

of a dwelling can be any weapon, including a speargun and does not necessarily have 

to be a firearm. Heston v. State, 490 So.2d 157 (2d DCA 1986). Therefore use or 

possession of a firearm is not an essential element to the crimes of which Respondent 

is convicted. 

Respondent's brief at page 7. 

The information brought against the respondent recites in count II 

that the respondent "did unlawfully by force, violence, assault, or 

putting in fear, take certain property, to wit: CASH, good and lawful 

currency ... and in the course of committing said ROBBERY, carried 

a FIREARM, in violation of 812.13 Florida Statutes." By way of 

contrast, count V, for which the respondent was not found guilty, 

states that the respondent "did unlawfully and feloniously display a 

certain firearm, while at said time and place the defendant was 

committing a felony, to wit: ROBBERY and/or BURGLARY, as 

provided by 812.13 and/or 810.02 Florida Statutes, the possession and 

display of said firearm as aforesaid being in violation of 790.07 

Florida Statutes." It is clear from the latter count that the State of 

Florida knows how to identify and charge a firearms offense, as 

distinct from a robbery or burglary offense. 

I think that where the majority and I part ways is in its 

interpretation that a statutory provision, section 812.13(2)(a), which 

categorizes a criminal act by its felony class for purposes of sentencing, 
Interim Decision #3201 

makes the offense of robbery a "firearms" offense for purposes of the 

immigration law. It may well be, as the Florida court held in Wallace v. 

State, 573 So. 2d 1010 (Fla. 1991), that possession of a firearm was an 

essential element of the crime of attempted robbery with a firearm, 

and that Wallace could not be convicted additionally of possession of a 

firearm during the commission of a felony. This result flowed from the 

general principle that Wallace could not be punished twice for the 

same act. The Wallace court, however, did not hold that if Wallace was 

convicted of robbery he had also committed a firearms offense. The 

majority is holding this, though, because it is finding that if an 

individual is convicted of a crime, one of whose elements is common 

to another offense, then that crime becomes that other offense. 

I believe that it defies common sense to conclude that a conviction 

for robbery or burglary or rape or murder becomes a firearms offense 

because the individual was not armed with a knife or other weapon 

proscribed by law. The Florida law criminalizes the use of violence, 

force, assault, or putting in fear. This criminal act is complete without 

the use of a firearm, or indeed, any weapon. If a firearm is used, then 

the punishment for the act of violence, the robbery, may be heightened. This being so, then the distinction the majority makes between 

this situation and the so-called sentence enhancement statutes is quite 

meaningless. In both this case, and in the California case discussed in 

Matter of Rodriguez-Cortes, 20 I&N Dec. 587 (BIA 1992), the use of a 

firearm did not define the conviction as a firearms offense, it only 

defined the punishment. The net result of this distinction that the 

majority attempts to make will be that where individuals with 

identical convictions and sentences apply for section 212(c) waivers, 

one will have committed a firearms offense and one will have not. This 

surely cannot be a logical or acceptable result. 

For these reasons, I would reverse the immigration judge and 

remand the record to allow the respondent to apply for a waiver under 

section 212(c) of the Act. 

DISSENTING OPINION: Mary Maguire Dunne, Board Member 

I respectfully concur in the foregoing dissent 

I do not believe that Congress intended the revision of the statute to 

effect different results in similar fact situations due to the language of 

the State statute under which an alien stands convicted. Such 

inconsistent results will clearly occur under the approach adopted by 

the majority. 

Moreover, I do not find the respondent to have been convicted of a 

firearms offense for the reasons stated in the dissent.