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 petitions 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 statute of conviction was divisible and

in applying the modified categorical approach to conclude he had been 

convicted of an aggravated felony. The petition is DENIED.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 6, 2014

Lyle W. Cayce

Clerk

 

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FACTUAL AND PROCEDURAL BACKGROUND

Franco-Casasola, a native and citizen of Guatemala, was admitted as an 

immigrant in Los Angeles, California, on May 29, 1992. On June 6, 2011, the 

Department 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 violation of 18 U.S.C. § 554(a). The notice 

alleged that he was removable 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 removal. 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 buying five semiautomatic pistols knowing they were intended for export to Guatemala and 

was sentenced to five months’ 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 favorable exercise of discretion and granted his application 

for cancellation of removal. DHS appealed to the BIA. 

The BIA disagreed with IJ. It concluded that a conviction under Section 

554(a) did constitute the aggravated felony of illicit trafficking in firearms, 

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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 removal is a question of law we review de 

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

we give deference to the BIA’s interpretation of immigration statutes, we 

review de novo the BIA’s determination of whether a particular state or federal 

crime qualifies as an aggravated felony. Id.; Patel v. Mukasey, 526 F.3d 800, 

802 (5th Cir. 2008). 

An alien is eligible to seek discretionary cancellation of removal if he has 

been a lawful permanent resident for at least five years, has resided in the 

United States continuously for seven years after having been admitted under 

any status, and has not been convicted of an aggravated felony. 8 U.S.C.

§ 1229b(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 FrancoCasasola was convicted provides:

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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 the 

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 undisputed that the 

categorical approach does not provide a final answer here because FrancoCasasola’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. The BIA also cited one of its earlier decisions, though, to 

state that its methodology for analyzing whether a statute of conviction is 

divisible varies from what this court has articulated. See Matter of Lanferman, 

25 I. & N. Dec. 721, 725 (BIA 2012).

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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-removable 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 

immigration 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 that our precedents 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 not divided into discrete subsections, it does list various means of committing 

the offense within disjunctively listed words and phrases. Section 554(a) lists

“any merchandise, article, or 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 objects, only 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 

prerogatives and is entitled to deference.

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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). The BIA did not err in concluding Section 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, the BIA determined FrancoCasasola’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, concealment and sale” of semi-automatic pistols 

“knowing these to be intended for export to Guatemala.” The term “trafficking” 

is defined as “[t]he act of transporting, trading, or dealing, esp. in people or 

illegal goods.” BLACK’S LAW DICTIONARY (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), modified on 

2 This 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 

Court described 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 Court’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 approach in immigration cases. In the absence of any argument from the parties, 

we 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 

term — 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).

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other grounds by Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 391 (BIA 2002). 

We have 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 commercial buying and selling of firearms for export 

to Guatemala; as such, we conclude that the BIA did not err in determining 

that Franco-Casasola’s conviction was an aggravated felony involving “illicit 

trafficking in firearms” under Section 1101(a)(43)(C). The 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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