### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 12

- 60977

DONALD EFREN FRANCO

- CASASOLA,

Petitioner

v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A043

- 282

- 317

Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges

. PER CURIAM: * Donald Efren Franco

- Casasola petition s for review of the decision of the Board of Immigration Appeals (“BIA” ) that he is ineligible for cancellation of removal due to his conviction of an aggravated felony

. Franco

- Casasola argues the BIA erred in determining that his stat ute of conviction was divisible and
in applying th e modified categorical approach to conclude he had been convicted of an aggravated felony

. The petition is DENIED.

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent exc ept under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 6, 2014 Lyle W. Cayce Clerk Case: 12-60977 Document: 00512551641 Page: 1 Date Filed: 03/06/2014No. 12

- 60977 FACTUAL AND PROCEDURAL BACKGROUND
Franco

- Casasola, a native and citizen of Guatemala, was admitted as an immigrant in Los Angel es, California, on May 29, 1992

. On June 6, 2011, the Depa rtment of Homeland Security (“DHS”) issued a Notice to Appear, alleging that on April 1, 2011, Franco

- Casasola was convicted of the fraudulent purchase of firearms for export in vio lation of 18 U.S.C. § 55 4(a)

. T he n otice alleged that he was remova ble under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, namely “illicit trafficking in firearms.” See 8 U.S.C. § 1101(a)(43)(C). Franco

- Casasola denied the charges of removability and filed an application for cancellation of re m oval. DHS responded by filing a motion contending he was ineligible for cancellation of removal because his conviction constituted an aggravated felony. See 8 U.S.C. § 1229b(a)

. The immigration judge (“IJ”) held an evidentiary hearing and DHS submitted the indictment charging Franco

- Casasola with conspiracy to purchase and export firearms and ammunition to drug cartels in Guatemala in violation of Section 554(a) . Franco

- Casasola pled guilty to buy ing five semi

automatic pistols knowing they were intende d for export to Guatemala and was sentenced to five m onths ’ imprisonment and two years of supervised release. Franco

- Casasola and his girlfriend also testified at the hearing about his permanent resident status, work history, and family ties to the United States. The IJ decided that Franco

- Casasola’s conviction under Section 554(a) did not constitute the aggravated felony of illicit trafficking in firearms , making him eligible for discretionary relief from removal . It then determined his case merited a f avorable exercise of discretion and granted his application f

or cancellation of removal. DHS appealed to the BIA. The BIA disagre ed with IJ. It concluded that a conviction under Section 554(a) did constitute the aggravated felony of illicit trafficking in firearms ,

2 Case: 12-60977 Document: 00512551641 Page: 2 Date Filed: 03/06/2014No. 12

- 60977 thereby making cancellation of removal unavailable . Franco

- Casasola timely filed a petition for review

.

DISCUSSION Generally, this court reviews only the final decision of the BIA. Zhu v. Gonzales , 493 F.3d 588, 593 (5th Cir. 2007). The BIA’s determination that an alien is ineligible for cancellation of re moval is a question of law we review de

novo

. Vasquez

- Martinez v. Holder , 564 F.3d 712, 715 (5th Cir. 2009). While

w e give deference to the BIA’s interpr etation o f immigration statutes, we review de novo the BIA’s determination of whether a particular state or federal crime qualifies as an aggravate d felony. Id. ; Patel v. Mukasey , 526 F.3d 800, 802 (5th Cir. 2008). An alien is eligible to seek discretionary canc ellation of removal if he has been a lawful permanent resident for at least five years, has resided in the United S tates continuously for seven years after having been admitted under any status, and has not been convicted of an aggravated felony . 8 U.S.C. § 12 29b(a). An alien seeking cancellation of removal has the burden of showing by a preponderance of the evidence “that he is not an aggravated felon and is therefore statutorily eligible for relief.” Vasquez

- Martinez , 564 F.3d at 715

- 16. The initial question on appeal is how to determine whether a prior offense qualifies as an aggravated felony

. We start with the categorical approach in making that determination

. See Larin

- Ulloa v. Gonzalez , 462 F.3d 456, 463 (5th Cir. 2006). Using this approach, the court refers “only to the statutory definition of the crime for which the alien was convicted . . . and ask[s] whether that legislatively

- defined offense necessarily fits within the INA definition of an aggravated felony.” Id. The statute under which Franco

Casasola was convicted provides:

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- 60977 Whoever fraudulently or knowingly exports or sends from the United States, or attempts to export or send from the United States, any merchandise, article, or object contrary to any law or regulation of th e United States, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise, article or object, prior to exportation, knowing the same to be intended for exportation contrary to any law or regulation of the United States, shall be fined under this title, imprisoned not more than 10 years, or both.
18 U.S.C. § 554(a). An aggravated felony includes “illicit trafficking in firearms or destructive devices.” 8 U.S.C. § 1101(a)(43)(C). It is u ndisputed that the categorical approach does not provide a final answer here because Franco

Casasola’s statute of conviction does not necessarily fit within the INA definition of the aggravated felony of illicit trafficking in firearms. If the categorical approach does not provide an answer, a modified categorical approach may be used in limited circumstances. Patel , 526 F.3d at
803

. All parties are also in agreement that the modified categorical approach as applied by this court requires that the statute of conviction be divisible

. Amouzadeh v. Winfrey , 467 F.3d 451, 455 (5th Cir. 2006). If it is, the modified categorical approach allows examination of “the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented” in addition to the language of the statute of conviction. Larin

- Ulloa , 462 F.3d at 464. The IJ and the BIA disagreed on the issue of whether Section 554 (a) is divisible for purposes of application of the modified categorical approach. The BIA determined that Section 554(a) was divisible . It then applied the modified categorical approach. Th e BIA also cited one of its earlier decisions, though, to
state that its methodology for analyzing whether a statute of conviction is div isibl e varies from what this court has articulated

. See Matter of Lanferman , 25 I. & N. Dec. 721, 725 (BIA 2012).

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- 60977
The BIA has determined that in the immigration context , divisibility should be permitted in “all statutes of conviction . . . regardless of their structure, so long as they contain an element or elements that could be satisfied either by removable or non

- remov able conduct

. ” Id. at 727

. In selecting this broad approach for determining divisibility , the BIA specifically rejected as too formulaic this court’s divisibility approach. Id. at 725 (citing Amouzadeh , 467 F.3d at 455 and Larin

- Ulloa , 462 F.3d 456). In the present
matter , the BIA applied the divisibility approach it outlined in Lanferman to conclude that Section 554(a) is divisible . In doing so, the BIA held our past decisions did not authoritatively define the scope of divisible statutes for immigra tion purposes in the Fifth Circuit

. We do not , in this appeal , analyze the merits of the BIA’s formulation for determining divisibility

. 1 We conclude t hat our precedent s on divisibility also command the conclusion that Section 554(a) is divisible

. Our approach to divisibility has focused on the structural or grammatical features of a statute of conviction such as subdivisions or disjunctively

- stated alternative means of committing the offense. See Patel , 526 F.3d at 803. Although Section 554(a) is no t divided into discrete subsections, it does list various means of committing the offense within disjunc tively listed words and phrases. Section 554(a) lists “any merchandise, article, o r object” and prohibits exportation as well as receiving, concealing, buying, selling, or in any manner facilitating “the transportation, concealment, or sale of such merchandise, article or object.” See 18 U.S.C. § 554(a). On its face, Section 554 prohibits various types of conduct and applies to a broad range of object s, o nly some of which would constitute an aggravated

1 The Government has argued that the Board’s determination of the best approach in the immigration context for determining divisibility is a legitimate exercise of the Board’s prerogative s and is entitled to deference. 5 Case: 12-60977 Document: 00512551641 Page: 5 Date Filed: 03/06/2014No. 12

- 60977 felony under Section 1101(a)(43)(C). See Nolos v. Holder , 611 F.3d 279, 284

- 85 (5th Cir. 2010) (finding statute divisible where it describes crimes, only some of which qualify as aggravated felonies)

. Thus , we conclude the structural characteristics of Section 554(a) “provide

. . . multiple forms of the offense, and at least one is not an aggravated felony,” making it divisible for use of the modified categorical approach. 2 Perez

- Gonzalez v. Holder , 667 F.3d 622, 625 (5th Cir. 2012). T he BIA did not err in concluding Se ction 554(a) is divisible. In light of our conclusion that Section 554(a) is divisible , it was also not error for the BIA to apply the modified categorical approach

. Upon review of the record of conviction, t he BIA determined Franco

Casasola’s offense fell within the meaning of illicit trafficking in firearms . The record of conviction shows that Franco

- Casasola did “buy, receive, conceal and facilitate the transportation, concealmen t and sale” of semi

- automatic pistols “knowing these to be intended for export to Guatemala.” T he term “ trafficking ” is defined as “ [ t ] he act of transporting, trading , or dealing , esp. in people or illegal goods. ” B LACK ’ S L AW D ICTIONARY (9th ed. 2009). The BIA has concluded that “ [ e ] ssential to the term” trafficking is its “business or merchant nature.” 3 Matter of Davis , 20 I. & N. Dec. 536, 541 (BIA 1992), mo dified on

2 T his approach to determining when a statute is divisible appears consistent with the Supreme Court’s most recent opinion discussing divisibility in the criminal context

. The C ourt des cribed divisible statutes as those “listing potential offense elements in the alternative . . .” where one alternative matches an element in the generic offense, but the other does not. See Descamps v. United States , 133 S.Ct. 2276, 2283 (2013). Neither party contends that the Supreme Cou rt’s decision in Descamps , or its other decision from the same term in Moncrieffe v. Holder , 133 S.Ct. 1678 (2013), has altered our court’s precedent regarding how we determine whether a statute is divisible or how we apply the modified categorical approac h in immigration cases. In the absence of any argument from the parties,

w e do not analyze now whether either of those decisions requires alteration of our precedent.
3 At least one of our sister circuits has concluded that the BIA’s construction of the t erm

— hinging on the business or merchant nature of the firearms conviction

— is a reasonable one comporting with the legal and everyday usage of that term. See Kuhali v. Reno , 266 F.3d 93, 108 (2d Cir. 2001). 6 Case: 12-60977 Document: 00512551641 Page: 6 Date Filed: 03/06/2014No. 12

- 60977 other grounds by Matter of Yanez

- Garcia , 23 I. & N. Dec. 390, 391 (BIA 2002).
W e hav e likewise concluded that “trafficking ordinarily means some sort of commercial dealing.” Arce

- Vences v. Mukasey , 512 F.3d 167, 171 (5th Cir. 2007) ( quotation marks omitted). Franco

- Casasola’s record of conviction shows that his offense involved commerci al buy ing and selling of firearms for export to Guatemala; as such, w e conclude that the BIA did not err in determining that Franco

- Casasola’s conviction was an aggravated felony involving “illicit trafficking in firearm s” un der Section 1101(a)(4 3)(C). T he BIA did not err in holding that Franco

- Casasola is ineligible for cancellation of removal

. The petition for review is DENIED.

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