IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60889

MIGUEL ANGEL SEGOVIA-RIVAS, 

 Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL, 

 Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A079 549 321

Before REAVLEY, JOLLY, and ELROD, Circuit Judges.

PER CURIAM:*

Miguel Angel Segovia-Rivas (Segovia-Rivas), a native and citizen of El 

Salvador, became a lawful permanent resident of the United States in 2002. 

In 2005 he was convicted of a Texas firearms offense resulting in his removal

from this country. He contests the removal asserting that the statute of 

conviction was not a firearms offense under the Immigration and Nationality 

Act (INA) § 237(a)(2)(C). This argument failed before both the Immigration 

 

* 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

April 8, 2016

Lyle W. Cayce

Clerk

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Judge (IJ) and the Board of Immigration Appeals (BIA). The argument also 

fails here, so we deny Segovia-Riva’s Petition for Review.

I.

Generally, this Court reviews only the BIA’s decision as the BIA conducts 

a de novo review of the administrative record. Mai v. Gonzales, 473 F.3d 162, 

164 (5th Cir. 2006). We review questions of law de novo, but “defer to the BIA’s 

interpretation of immigration regulations if the interpretation is reasonable.” 

Id.

II.

Segovia-Rivas was removed under the federal statute for firearms 

offenses1 which states that:

[a]ny alien who at any time after admission is convicted under any 

law of purchasing, selling, offering for sale, exchanging, using, 

owning, possessing, or carrying, or of attempting or conspiring to 

purchase, sell, offer for sale, exchange, use, own, possess, or carry, 

any weapon, part, or accessory which is a firearm or destructive 

device (as defined in section 921(a) of Title 18) in violation of any 

law is deportable.

INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C) (emphasis added). The removal 

was based on Segovia-Rivas’ conviction for “Attempted Deadly Conduct –

Discharge of a Firearm” in violation of Texas Penal Code §§ 15.01 and 22.05. 

The statute of conviction is comprised of two Texas statutes – Criminal 

Attempt and Deadly Conduct.2 In his request for review, Segovia-Rivas argues 

 

1 The Department of Homeland Security also supplemented its removal action under 

INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i) which provides for deportation for a 

conviction for a crime involving moral turpitude. Here, Segovia-Rivas does not dispute his 

removal on this basis.

2 Section 15.01 provides that an attempt offense is committed “if with specific intent 

to commit an offense, [a person] does an act amounting to more than mere preparation that 

tends but fails to effect the commission of the offense intended.” Tex. Penal Code § 15.01. 

The deadly conduct portion states that “[a] person commits an offense if he knowingly 

discharges a firearm at or in the direction of: (1) one or more individuals; or (2) a habitation, 

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that the Texas statute of conviction is not a “firearm” offense under INA 

§237(a)(2)(c). The crux of his argument is that the BIA improperly applied the 

Supreme Court’s holding in Descamps v. United States, 133 S. Ct. 2276 (2013). 

He correctly applies Descamps to the instant case, in that a statute of 

conviction that sweeps more broadly than the generic crime cannot serve as a 

predicate offense. Id. at 2283. However, by applying the modified categorical 

approach, the BIA was entitled to review the charging instrument and properly 

concluded that Count Three of the Indictment, to which Segovia-Rivas pled 

guilty, tracked the language of section 22.05(b)(1) by alleging that he 

“knowingly discharged a firearm at or in the direction of Veronica Contreras.” 

Segovia-Rivas’ argument that the BIA misapplied Descamps is without merit.

Alternatively, Segovia-Rivas asserts that even if the modified categorical 

approach was properly applied, the BIA erred in finding that the attempted 

deadly conduct conviction is a deportable offense under immigration law. The 

BIA cites Matter of St. John, 21 I&N Dec. 593 (BIA 1996) which held that under 

the amended INA § 241(a)(2)(C), a conviction for the attempted use of a firearm 

is a deportable offense which replies retroactively. Segovia-Rivas argues that 

that the Matter of St. John is distinguished from his case because: (1) the 

underlying conviction was federal, not state, (2), the main issue was whether 

the amended statute could be applied retroactively; and (3) the decision does 

not specifically address whether the Texas statute for attempted deadly 

conduct constitutes a firearm offense under INA § 237(a)(2)(C). The first two 

differences cited by Segovia-Rivas are of no import to the instant case. 

However, what is important and clearly applicable to the Texas statute at 

 

building, or vehicle and is reckless as to whether the habitation, building, or vehicle is 

occupied.” Tex. Penal Code § 22.05.

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issue, is that Matter of St. John holds that there does exist a deportable offense 

of “attempt” as relative to the use of firearms. 

Additionally, Segovia-Rivas contends that he did not plead guilty to “use 

of a firearm” but instead to “attempted deadly conduct – discharge firearm” at 

an individual. The two “discharge firearm” words simply explain the manner 

in which he attempted the deadly conduct. Discharging a firearm clearly 

involves use of a firearm. 

III.

Accordingly, the Petition for Review is DENIED.

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