Interim Decision #3202 

MATTER OF LOPEZ-AMARO 

In Deportation Proceedings 

A-18760938 

Decided by Board June 1, 1993 

(1) Although section 775.087 of the Florida Statutes is, on its face, a penalty 

enhancement provision designed to raise the penalty for conviction of a felony where 

the felony is committed with the use of a weapon or firearm, under Florida caselaw, 

use of a firearm becomes an element of the substantive offense of first degree murder 

with a firearm where the elements of murder under section 782.04 of the Florida 

Statutes and of use of a firearm under section 775.087 of the Florida Statutes are 

charged and proven. 

(2) A conviction for first degree murder with a firearm in violation of sections 782.04 

and 775.087 of the Florida Statutes constitutes a firearms offense within the meaning 

of 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 is deemed to be an 

element of the defendant's substantive offense. Matter of Rodriguez-Cortes, 20 I&N 

Dec. 587 (BIA 1992), distinguished. 

CHARGE: 

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

ON BEHALF OF RESPONDENT: 

Manfred Rosenow, Esquire 

Mario M. Lovo, Esquire 

2425 Coral Way 

Miami, Florida 33145 

ON BEHALF OF SERVICE: 

Kenneth S. Hurewitz 

General Attorney 

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

Heilman, hoard Member. 

In a decision dated December 7, 1992, the immigration judge 

terminated proceedings which had been instituted against the respondent based on a charge of deportability under section 241(a)(2)(C) of 

the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. 

III 1991), for conviction of a firearms violation. The Immigration and 

Naturalization Service has appealed. The appeal will be sustained and 

the respondent will be ordered deported. The Service's request for oral 

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Interim Decision #3202 

argument before this Board was withdrawn by Appellate Counsel for 

the Service. 

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

paroled into the United States in 1972, and whose status was adjusted 

to that of a lawful permanent resident on May 14, 1977. According to 

the judgment contained in the record of proceedings, on December 8, 

1983, the respondent was convicted in the Circuit Court, Eleventh 

Judicial Circuit in and for Dade County, Florida, of first degree 

murder with a firearm (pistol) in violation of sections 782.04 and 

775.087 of the Florida Statutes. On July 31; 1991, the Service 

instituted proceedings by filing an Order to Show Cause and Notice of 

Hearing (Form 1-221) with the Office of the Immigration Judge, 

charging the respondent with deportability under section 241(a)(2)(C) 

of the Act for conviction of a firearms violation.' 

The immigration judge found that section 241(a)(2)(C) could not be 

applied "retroactively" to cover the respondent's 1983 conviction. We 

recently decided this issue contrary to the position taken by the 

immigration judge. Matter of Chow, 20 I&N Dec. 647 (BIA 1993), 

aff'd, 12 F.3d 34 (5th Cir. 1993). Section 241(a)(2)(C) of the Act is a 

proper charge. The respondent was notified of these proceedings by an 

Order to Show Cause issued and served after March 1, 1991. The 1990 

revised deportation provisions therefore apply. See section 602(d) of 

the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 

5082 (enacted Nov. 29, 1990). According to its plain language, section 

241(a)(2)(C) applies to convictions "at any time after entry." Section 

241(a)(2)(C) thus supersedes any prior versions of the firearms 

deportation ground for any deportation proceedings for which the 

respondent received notice after March 1, 1991. Matter of Chow, 

supra. 

Alternatively, the immigration judge held that the respondent had 

not been convicted of a firearms offense. In reaching this conclusion 

the immigration judge relied in part on Matter of Rodriguez-Cortes, 20 

I&N Dec. 587 (BIA 1992), in which the respondent's punishment for 

the first of her five counts of attempted murder in the second degree 

was enhanced by 1 year based on the use of a firearm in the 

commission of the crime. In Rodriguez-Cortes the Board held that the 

firearms enhancement was not a firearms conviction for purposes of 

section 241(a)(2)(C) of the Act. The immigration judge in the present 

case found .Rodriguez-Cortes analogous, noting that section 775.087 of 

the Florida Statutes is also a firearms enhancement provision. 

I Deportability based on conviction of a crime involving moral turpitude is not at 

issue in this case because the murder took place more than 5 years after the respondent's 

last entry into this country. See section 241(a)(2)(A)(i)(I) of the Act. 

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Interim Decision #3202 

Rodriguez-Cortes addresses only one enhancement provision and 

only one of numerous ways enhancement statutes are used in the 

federal and state criminal systems. The enhancement provision as 

described in Rodriguez -Cortes functioned in a limited fashion. It did 

not create a separate offense or conviction under California law. It did 

not merge with the respondent's conviction or become a lesser 

included offense of the murder conviction. See People v. Wolcott, 665 

P.2d 520 (Cal. 1983). It simply added 1 year to the defendant's 

sentence as, on its face, it is designed to do. In truth, however, 

enhancement statutes and their uses vary widely and often become 

part of a defendant's substantive offense. For example, 18 U.S.C. 

§ 924(c)(1) (Supp. II 1990), which is widely characterized as a firearms 

enhancement provision, is commonly treated as a substantive offense 

for which a person can be found guilty and sentenced. See United 

States v. Hill, 971 F.2d 1461 (10th Cir. 1992); Matter of K-L-, 20 I&N 

Dec. 654 (BIA 1993), affd, 12 F.3d 1102 (8th Cir. 1993); Matter of 

Carrillo, 16 I&N Dec. 625 (BIA 1978). This is not to mention the 

variety of enhancement statutes and uses within and among the states. 

As the facts in the present case illustrate, there is no magic in the word 

"enhancement"; rather, the use and effect of the enhancement statute 

in a particular case must be examined. The fact that the firearms 

element in a conviction record originated from an "enhancement" 

statute cannot function as a bright-line test to exculpate an alien from 

deportability under section 241(a)(2)(C) of the Act. 

The firearms statute in the instant case is an "enhancement" 

statute. Section 775.087 of the Florida Statutes provides in pertinent 

part: 

(1) Unless otherwise provided by law, 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, ... the felony for which the person is 

charged shall be reclassified as follows: 

(a) In the case of a felony of the first degree, to a life felony. 

(b) In the case of a felony of the second degree, to a felony of the first degree. 

(c) In the case of a felony of the third degree, to a felony of the second degree. 

(2)(a) Any person who is convicted of: 

I. Any murder, sexual battery, robbery, burglary, arson, aggravated assault, 

aggravated battery, kidnapping ... 

and who had in his possession a "firearm," as defined in s. 790.001(6), or 

"destructive device," as defined in s. 790.001(4), shall be sentenced to a minimum 

term of imprisonment of 3 calendar years.... Notwithstanding the provisions of a. 

948.01, adjudication of guilt or imposition of sentence shall not be suspended, 

deferred, or withheld, nor shall the defendant be eligible for parole or statutory gaintime under s. 944.275, prior to serving such minimum sentence. 

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Interim Decision #3202 

Fla. Stat. Ann. § 775.087 (West 1993) (quoted material is substantively unchanged from the version of the statute in effect at the time of the 

respondent's conviction). 

Similar to the firearms enhancement provision at issue in Matter of 

Rodriguez-Cortes, supra, section 775.087 on its face operates to raise 

the penalty when a felony, including certain named crimes, is 

committed with the use of a weapon or firearm. It does so by 

upgrading the felony classification (and therefore the increased 

punishment that goes with it), or by imposing a minimum 3-year 

mandatory sentence without the option of suspension, deferment, or 

withholding of adjudication of guilt or imposition of sentence, and 

without eligibility for parole or gain time prior to the completion of the 

3 years. Also similar to the provision in Rodriguez-Cortes, section 

775.087(1), by its very terms, cannot apply to any "felony in which the 

use of a weapon or firearm is an essential element." However, despite 

this similarity, the application of section 775.087 in this case results in 

an outcome quite different from that in Rodriguez-Cortes. 

The respondent was convicted of first degree murder under section 

782.04 of the Florida Statutes. 2First degree murder is a "capital" 

felony punishable by death or life in prison with a minimum 

mandatory 25 years prior to eligibility for parole? The respondent was 

2The current version of section 782.04(1)(a) of the Florida Statutes, like the version in 

effect in 1983, continues to define murder in part as follows: 

The unlawful killing of a human being: 

1. When perpetrated from a premeditated design to effect the death of the person 

killed or any human being ... is murder in the first degree and constitutes a capital 

felony, punishable as provided in s. 775.082. 

Fla. Stat. Ann. § 782.04(1)(a) (West 1993). 

3 Section 775.082 of the Florida Statutes, referred to in section 782.04, has not 

changed since the respondent's conviction and states in part: 

(1) A person who has been convicted of a capital felony shall be punished by life 

imprisonment and shall be required to serve no less than 25 years before becoming 

eligible for parole unless the proceeding held to determine sentence according to the 

procedure set forth in s. 921.141 results in findings by the court that such person shall 

be punished by death, and in the latter event such person shall be punished by death. 

(2) In the event the death penalty in a capital felony is held to be unconstitutional by 

the Florida Supreme Court or the United States Supreme Court, the court having 

jurisdiction over a person previously sentenced to death for a capital felony shall cause 

such person to be brought before the court, and the court shall sentence such person to 

life imprisonment as provided in subsection (1). 

(3) A person who has been convicted of any other designated felony may be 

punished as follows: 

(a) For a life felony committed prior to October 1, 1983, by a term of imprisonment 

for life or for a term of years not less than 30 and, for a life felony committed on or 

after October 1, 1983, by a term of imprisonment for life or by a term of 

imprisonment not exceeding 40 years; 

47t 
Interim Decision #3202 

sentenced to life imprisonment with 25 years without parole as a 

mandatory minimum. So how was the penalty increased by proof of 

section 775.087 in this case? It was not. A. "capital" felony is a higher 

classification than a "life" felony. See Fla. Stat. Ann. § 771082(1) 

(West 1991), supra note 3. A capital felony cannot be reclassified to 

something higher and, indeed, section 775.087 does not even mention 

capital felonies. Moreover, the 3-year mandatory requirement of 

section 775.087(2) is obviously no increase to the respondent's 

already-imposed 25-year minimum mandatory sentence. 

Nonetheless, the inclusion of section 775.087 in the respondent's 

case is not mere surplusage.' Rather, section 775.087 was used to 

enhance not the penalty but the characterization of the respondent's 

offense itself. Under Florida law, use of a firearm is not an essential 

element of the crime of murder. Strickland v. State, 437 So.2d 150 

(Fla. 1983). However, murder becomes the enhanced offense of 

"murder with a firearm" if section 775.087 is charged in the 

information and is satisfied. Burgess v. State, 524 So.2d 1132 (Fla. 

Dist. Ct. App. 1988). In other words, if the elements of murder under 

section 782.04 and the elements of use of a firearm during the 

commission of a felony under section 775.087 are charged and proven, 

the defendant is considered to have been convicted of "murder with a 

firearm" under Florida law. Id. In fact, a defendant convicted as such 

cannot be separately charged and convicted of "use of a firearm during 

the commission of a felony" pursuant to section 790.07(2) of the 

Florida Statutes because that would violate double jeopardy. Id. In 

these circumstances, where the firearms element has become an 

element of the respondent's substantive offense, the fact that the 

firearms element of the respondent's conviction came from an 

"enhancement" statute is irrelevant. 

Given that there is no question that the respondent has been 

convicted for immigration purposes, see Matter of Ozkok, 19 I&N Dec. 

546 (BIA 1988), and that use of a firearm is deemed to be an element 

or lesser included offense of her conviction, the relevant question is 

whether the conviction is properly termed a conviction for a firearms 

offense within the meaning of section 241(a)(2)(C) of the Act. While 

(1,) For a felony of the first degree, by a term of imprisonment not exceeding 30 

years or, when specifically provided by statute, by imprisonment for a term of years 

not exceeding life imprisonment; 

(c) For a felony of the second degree, by a term of imprisonment not exceeding 15 

years; 

(d) For a felony of the third degree, by a term of imprisonment not exceeding 5 

years. 

Fla. Stat. Ann. § 775.082 (West 1993). 

4Cf: Matter of Perez-Contreras, 20 I&N Dec. 615, at 617 & n. 4 (BIA 1992). 

477 
Interim Decision #3202 

use of a firearm is deemed to be an element of the respondent's 

offense, does that make the offense a firearms offense, or is it murder 

only (a crime involving moral turpitude), or is it both? This is the issue 

addressed by the concurrence in Matter of Montenegro, 20 I&N Dec. 

603 (BIA 1992) (Heilman, concurring). 

We find that a conviction such as that in the present case, where the 

firearms violation is deemed to be an element or lesser included 

offense of the conviction, is properly considered both a crime 

involving moral turpitude and a firearms conviction under section 

241(a)(2)(C) of the Act. There is no doubt that murder is a crime 

involving moral turpitude regardless of whether it was committed with 

a firearm. That it was committed with a firearm, however, and that use 

of the firearm is deemed to be an element or a lesser included offense 

of the crime, also makes it a firearms violation under section 

241(a)(2)(C). The amendment of the firearms deportation ground to 

include "use" violations indicates more than "regulatory" violations 

as suggested in the concurrence in Matter of Montenegro, supra, at 8. 

An alien convicted of "use of a firearm" would be deportable under 

section 241(a)(2)(C) of the Act. An alien who used the firearm to kill a 

person and was convicted of "murder" and of "use of a firearm" 

would also be deportable under section 241(a)(2)(C). It would be 

incongruous to hold that an alien who used the firearm to kill a person 

and was convicted of "murder with the use of a firearm," where the 

use of the firearm was specifically deemed to be a lesser included 

offense, was not deportable under section 241(a)(2)(C). That is the case 

here. We find the respondent deportable as charged. The appeal will be 

sustained. The respondent does not appear eligible for relief from 

deportation. Accordingly, the following orders will be entered. 

ORDER: The appeal of the Immigration and Naturalization 

Service is sustained and the decision of the immigration judge is 

vacated. 

FURTHER ORDER: It is ordered that the respondent be 

deported from the United States to Cuba. 

DISSENTING OPINION: Michael J. Heilman, Board Member 

I respectfully dissent. 

In a very short time, this Board has had to retreat from its confident 

position in Matter of Rodriguez-Codes, 20 I&N Dec. 587 (BIA 1992), 

that individuals who had been convicted of a "firearms" violation 

were distinguishable from those who had merely had their sentences 

"enhanced" because they had used a firearm in the course of 

committing a crime. In this case, the distinction falls into a broken 

heap. The respondent has been convicted of murder under section 
Interim Decision #3202 

782.04 of the Florida Statutes. Because the murder was committed 

with a firearm, he came within the provisions of section 775.087 of the 

Florida Statutes for purposes of sentencing. 

The Florida courts that interpret Florida criminal statutes seem to 

be under the impression that the purpose of section 775.087 is to 

categorize or classify the offense of murder by its level of severity for 

purposes of punishment. In a decision involving the same Florida 

statutes at issue here, a Florida court held: 

Attempted first-degree murder under Sections 782.04 and 777.04, Florida 

Statutes, becomes the enhanced offense of attempted first-degree murder with a 

firearm under Section 775.087, Florida Statutes, which provides: 

(1) Unless otherwise provided by law, whenever a person is charged with a 

felony, except a felony in which the use of a weapon or firearm is an essential 

eleme=nt, 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, the 

felony for which the person is charged shall be reclassified as follows: 

(a) In the case of a felony of the first degree, to a life felony. 

Burgess v.. State, 524 So.2d 1132, 1134 (Fla. Dist. Ct. App. 1988). 

If indeed we are construing the language of section 775.087, then it 

is not at all clear to me why we would ignore the fact that a person will 

fall within this statute's purview if the person has used "any weapon or 

firearm," or "commits an aggravated battery." To call this provision a 

statute aimed at firearms would be a gross exaggeration. It is evident 

that an individual need not use a firearm to be punished under this 

provision_ 

If we are actually applying the firearms deportation ground 

provided for in the immigration law, then we are supposed to be 

deciding if the respondent here is 

Nay 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). 

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

§ 1251(a)(2)(C) (Supp. III 1991). 

The only word in this deportation provision that appears to be 

relevant to the respondent's case is the word "using," as the Florida 

sentencing statute heightens the punishment for one who "uses" or 

"attempts to use" a firearm in the course of a felony. But unlike the 

majority, I do not find that simply because the same word is used in 

the immigration law and the Florida statute, the word makes the 

statute into a firearms offense. If this is so, then the statute is also a 

"weapons" offense and an "aggravated battery" offense, because both 

of those terms are also in the Florida statute. 

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Interim Decision #3202 

In my estimation, the fallacy of the Board's interpretation lies in its 

persistent belief that if it discovers the word "firearm" in a statute it 

has uncovered a firearms offense. If, however the statute "enhances" a 

punishment for another felony, then it is not a firearms offense. But of 

course, an "enhancement" statute may refer to a firearm, and if it 

does, it will also become a firearms offense if the reference to a firearm 

is construed as an "element" of the statute. It would be useful to us all, 

however, if the majority would define what it means by "element." 

While the majority uses that term as if it were applying the general 

legal usage of the word "element," meaning the parts of a crime that 

must be proved to sustain a conviction, in actuality, it is interpreting 

that term in a much broader, more colloquial sense. The use of a 

firearm is not an "element" of murder in the State of Florida, and the 

conviction of the respondent would stand even if his sentencing under 

section '782.04 was reversed. 

The loose usage of the term "element" by the majority can easily 

result in circular reasoning, as is apparent here. We are told by the 

Florida murder statute, section 782.04, that the use of a firearm is not 

an essential element of the offense of murder. We are explicitly told by 

the "enhancement" provision, section 775.087, that an individual may 

not be sentenced under this latter provision if the underlying felony to 

which this section is applied has as an "essential element" the use of a 

firearm. The conclusion is inescapable that the felony offense of 

murder under Florida law is not an offense defined by the use of a 

firearm. This being the case, then these two Florida statutes, as applied 

in tandem, are no different from the two California statutes this Board 

construed in Matter of Rodriguez-Cortes, supra. 

For these reasons, I would dismiss the appeal.