Ricardo Chacon v. Robert Wilkinson ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO CHACON, No. 18-71515
Petitioner,
Agency No.
v. A094-766-759
ROBERT M. WILKINSON, Acting
Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 19, 2020 *
San Francisco, California
Filed February 18, 2021
Before: Jacqueline H. Nguyen, Andrew D. Hurwitz, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Bress
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 CHACON V. WILKINSON
SUMMARY **
Immigration
Denying Ricardo Chacon’s petition for review of a
decision of the Board of Immigration Appeals, the panel held
that a conviction for importing, manufacturing, or dealing in
firearms without a license, 18 U.S.C. § 922(a)(1)(A), is
categorically an “illicit trafficking in firearms” aggravated
felony under 8 U.S.C. § 1101(a)(43)(C) that made him
ineligible for asylum.
Because the Immigration and Nationality Act (“INA”)
does not define “illicit trafficking,” the panel considered
whether to defer to the BIA’s interpretation in its
unpublished decision in this case. In a prior published
decision in Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992),
abrogated on other grounds, the BIA concluded that illicit
trafficking in a controlled substance – another aggravated
felony – includes any felony conviction involving the
“unlawful trading or dealing of any controlled substance.”
Relying on Davis, the BIA here concluded that “illicit
trafficking in firearms” means “any unlawful trading or
dealing” in firearms.
The panel deferred to the BIAs’ interpretation,
concluding that whether Chevron or some lesser measure of
deference applied, the BIA’s interpretation is persuasive.
The panel explained that the BIA’s definition tracks the
common understanding of “trafficking,” which means some
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CHACON V. WILKINSON 3
sort of commercial dealing. The panel also explained that
the definition is consistent with Rendon v. Mukasey, 520
F.3d 967 (9th Cir. 2008), where this court interpreted “illicit
trafficking in a controlled substance” and held that a state
offense contained a trafficking element because it required
intent to engage in commercial dealing. The panel saw no
reason to depart from the rule of statutory interpretation that
identical words used in different parts of the same statute are
generally presumed to have the same meaning, noting that
“illicit trafficking in firearms” is in the very next sub-
definition of “aggravated felony” after “illicit trafficking in
a controlled substance.”
Next, the panel concluded that § 922(a)(1)(A) is a
categorical match to “illicit trafficking in firearms” under
§ 1101(a)(43)(C), explaining that § 922(a)(1)(A) makes it
unlawful for any person (except those licensed to do so) “to
engage in the business of importing, manufacturing, or
dealing in firearms, or in the course of such business to ship,
transport, or receive any firearm in interstate or foreign
commerce.” Looking to the statute’s extensive definition of
what “engaged in business” means, the panel concluded that
a conviction under § 922(a)(1)(A) does not criminalize more
conduct than the federal generic offense. The panel further
noted that two other circuits have reached the same
conclusion for similar criminal statutes.
For these reasons and those set forth in the panel’s
accompanying memorandum disposition, the panel denied
the petition for review.
4 CHACON V. WILKINSON
COUNSEL
Geraldine Escalante, Hawthorne, California, for Petitioner.
Joseph H. Hunt, Assistant Attorney General; Leslie McKay
and Greg D. Mack, Senior Litigation Counsel; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
OPINION
BRESS, Circuit Judge:
The principal question in this case is whether a federal
conviction for importing, manufacturing, or dealing in
firearms without a license, in violation of 18 U.S.C.
§ 922(a)(1)(A), is categorically an “aggravated felony”
under the Immigration and Nationality Act (INA). We hold
that it is and that petitioner is consequently ineligible for
asylum.
I
Petitioner Ricardo Chacon is a native and citizen of El
Salvador who unlawfully entered the United States in 2001
when he was about seven years old. For a time, he was
granted Temporary Protected Status. In 2016, Chacon
pleaded guilty to dealing in firearms without a license in
violation of 18 U.S.C. § 922(a)(1)(A). The district court
sentenced Chacon to 30 months in prison.
In 2017, the Department of Homeland Security (DHS)
began removal proceedings. Chacon conceded removability
and applied for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT).
CHACON V. WILKINSON 5
The Immigration Judge (IJ) denied relief. As relevant here,
the IJ found that Chacon’s conviction under 18 U.S.C.
§ 922(a)(1)(A) qualified as an “aggravated felony”
conviction that precluded asylum. The Board of
Immigration Appeals (BIA) agreed and dismissed Chacon’s
appeal. Chacon now timely petitions for review. 1
II
Under the INA, an alien is ineligible for asylum if he has
been convicted of a “particularly serious crime,” which
includes any “aggravated felony.” 8 U.S.C.
§ 1158(b)(2)(A)(ii), (B)(i). The statute defines “aggravated
felony” as a long list of offenses, including “illicit trafficking
in firearms.” Id. § 1101(a)(43)(C). Chacon was convicted
under 18 U.S.C. § 922(a)(1)(A), which makes it unlawful for
any person “except a licensed importer, licensed
manufacturer, or licensed dealer, to engage in the business
of importing, manufacturing, or dealing in firearms, or in the
course of such business to ship, transport, or receive any
firearm in interstate or foreign commerce.” The legal
question we address here, which we review de novo,
Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir.
2004), is whether Chacon’s federal conviction under
§ 922(a)(1)(A) is an “aggravated felony” under the INA.
Because the statutory term “illicit trafficking in
firearms” refers to a “generic crime,” Nijhawan v. Holder,
557 U.S. 29, 37 (2009), we apply the “categorical” approach
from Taylor v. United States, 495 U.S. 575 (1990). See Ho
1
The IJ and BIA also denied Chacon’s requests for withholding of
removal and CAT relief. In a concurrently filed memorandum
disposition, we deny the petition for review as to those issues. We do
not consider the IJ’s alternative finding that Chacon’s asylum application
was untimely.
6 CHACON V. WILKINSON
Sang Yim v. Barr, 972 F.3d 1069, 1077 (9th Cir. 2020).
Under this methodology (and contrary to Chacon’s argument
on appeal), we do not consider the particular facts underlying
a conviction. Moncrieffe v. Holder, 569 U.S. 184, 190
(2013). Instead, we “compare the elements of the statute of
conviction with a federal definition of the crime to determine
whether conduct proscribed by the statute is broader than the
generic federal definition.” Rodriguez-Castellon v. Holder,
733 F.3d 847, 853 (9th Cir. 2013) (quotations omitted). If
the statute of conviction “criminalizes the same amount of
conduct (or less) as the generic offense,” there is a
categorical match and the conviction qualifies as an
“aggravated felony.” Ho Sang Yim, 972 F.3d at 1083. But
if the statute of conviction is broader than the INA’s generic
definition, the conviction is not categorically an “aggravated
felony,” and the immigration consequences attendant to that
classification do not automatically follow. Rodriguez-
Castellon, 733 F.3d at 853. 2
Here, both statutes define “firearms” identically, using
the definition in 18 U.S.C. § 921(a)(3). See 8 U.S.C.
§ 1101(a)(43)(C); 18 U.S.C. § 922(a)(1)(A). As a result, the
only question is whether the INA’s definition of “illicit
trafficking” aligns with what 18 U.S.C. § 922(a)(1)(A)
prohibits. “Illicit trafficking” is not defined in the INA. In
that circumstance, “[w]e defer to the BIA’s articulation of
the generic federal definition if . . . the BIA’s interpretation
2
At that point, we would then evaluate whether the statute of
conviction is “divisible,” and, if so, whether (using the modified
categorical approach) the petitioner was convicted under a divisible
portion of the statute that qualifies as an “aggravated felony.” E.g.,
Gomez Fernandez v. Barr, 969 F.3d 1077, 1086, 1088–89 (9th Cir.
2020). This further analysis is unnecessary here.
CHACON V. WILKINSON 7
is based on a permissible construction of the statute.” Ho
Sang Yim, 972 F.3d at 1077 (quotations omitted).
In Matter of Davis, 20 I. & N. Dec. 536, 541 (BIA 1992),
abrogated on other grounds as recognized by Cazarez-
Gutierrez, 382 F.3d at 911–12, the BIA analyzed the
aggravated felony of “illicit trafficking in any controlled
substance,” now codified at 8 U.S.C. § 1101(a)(43)(B). The
BIA adopted the definition of “trafficking” in Black’s Law
Dictionary: “‘Trading or dealing in certain goods and
commonly used in connection with illegal narcotic sales.’”
Id. (quoting Trafficking, Black’s Law Dictionary (5th ed.
1979)). The BIA observed that “[e]ssential to the term
[‘trafficking’] in this sense is its business or merchant nature,
the trading or dealing of goods.” Id. The BIA thus
concluded that “a drug-related aggravated felony includes
any state, federal, or qualified foreign felony conviction
involving the unlawful trading or dealing of any controlled
substance.” Id.Here, the BIA relied on Davis to conclude that “illicit
trafficking in firearms” meant “any unlawful trading or
dealing” in firearms. Although the BIA’s decision was
unpublished, the government argues it warrants deference
under Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984), because the BIA relied
on its prior published decision in Davis. See Marmolejo-
Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en
banc) (explaining that Chevron deference applies
“regardless of whether the order under review is the
precedential decision itself or a subsequent unpublished
order that relies upon it”). But whether we apply Chevron
or some lesser measure of deference, see Skidmore v. Swift
& Co., 323 U.S. 134 (1944), the BIA’s interpretation of
“illicit trafficking” is persuasive and would prevail.
8 CHACON V. WILKINSON
The BIA’s definition—“unlawful trading or dealing”—
tracks the common understanding of the phrase “illicit
trafficking.” When Congress does not define a term, we
“interpret the words consistent with their ordinary meaning
at the time Congress enacted the statute.” Wisconsin Cent.
Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018)
(quotations and alterations omitted). Congress added illicit
trafficking in firearms as an aggravated felony in 1988 and
modified the provision to include its current language in
1994. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-
690, § 7342, 102 Stat. 4181, 4469–70; Immigration and
Nationality Technical Corrections Act of 1994, Pub. L. No.
103-416, § 222, 108 Stat. 4305, 4320–21. “Trafficking”
meant then, and means now, what Davis said it meant: the
“trading or dealing in certain goods.” Trafficking, Black’s
Law Dictionary (6th ed. 1990); see also Trafficking, Black’s
Law Dictionary (11th ed. 2019) (“[t]he act of transporting,
trading, or dealing, esp. in illegal goods or people”).
“Trafficking,” in other words, “means some sort of
commercial dealing.” Lopez v. Gonzales, 549 U.S. 47, 53
(2006).
That is precisely how we interpreted “illicit trafficking”
in 8 U.S.C. § 1101(a)(43)(B), which defines “aggravated
felony” as “illicit trafficking in a controlled substance.” In
Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008), we held
that a Kansas conviction for possession of a controlled
substance with intent to distribute “contains a trafficking
element” because such a conviction “necessarily means” that
the defendant “possessed the [controlled substance] with the
intent to engage in ‘some sort of commercial dealing.’” Id.at 975–76 (9th Cir. 2008) (quoting Lopez, 549 U.S. at 53);
see also Cortes-Maldonado v. Barr, 978 F.3d 643, 650 (9th
Cir. 2020) (explaining that under accepted definitions
“controlled substance convictions qualify as ‘illicit
CHACON V. WILKINSON 9
trafficking’ if they require the transfer or exchange of money
or other consideration”).
We see no reason to depart from “the normal rule of
statutory interpretation that identical words used in different
parts of the same statute are generally presumed to have the
same meaning.” IBP, Inc. v. Alvarez, 546 U.S. 21, 34
(2005). And here, “illicit trafficking in firearms” is in the
very next sub-definition of “aggravated felony” after “illicit
trafficking in a controlled substance.” 8 U.S.C.
§ 1101(a)(43)(B)–(C). Because trading and dealing are
basic forms of trafficking, the BIA permissibly relied on
Davis to conclude that “illicit trafficking in firearms” means
“any unlawful trading or dealing” in firearms. See Davis,
20 I. & N. Dec. at 541.
With the generic definition of “illicit trafficking” in
place, we turn back to Chacon’s statute of conviction,
18 U.S.C. § 922(a)(1)(A), to see if it is a categorical match.
Again, § 922(a)(1)(A) makes it unlawful for any person
“except a licensed importer, licensed manufacturer, or
licensed dealer, to engage in the business of importing,
manufacturing, or dealing in firearms, or in the course of
such business to ship, transport, or receive any firearm in
interstate or foreign commerce” (emphasis added). The
statute contains an extensive definition of what “engaged in
the business” means. It requires that someone must
“devote[] time, attention, and labor” to manufacturing,
dealing, or importing firearms “as a regular course of trade
or business with the principal objective of livelihood and
profit” “through the sale or distribution of the firearms” or
“the repetitive purchase and resale of firearms.” Id.
§ 921(a)(21)(A), (C)–(E). The phrase “with the principal
objective of livelihood and profit” is in turn defined to mean
“that the intent underlying the sale or disposition of firearms
10 CHACON V. WILKINSON
is predominantly one of obtaining livelihood and pecuniary
gain, as opposed to other intents, such as improving or
liquidating a personal firearms collection.” Id. § 921(a)(22).
Given these statutory definitions, the BIA properly
concluded that a conviction under 18 U.S.C. § 922(a)(1)(A)
qualifies as a conviction for “illicit trafficking in firearms”
under 8 U.S.C. § 1101(a)(43)(C). Someone engaged in the
business of manufacturing, dealing, or importing firearms
without a license, or who ships, transports, or receives any
firearm in the course of such unlawful business, is
necessarily engaged in the unlawful trading or dealing in
firearms. That is, they are engaged in “illicit trafficking in
firearms.” Whether or not some lesser conduct would also
satisfy the INA’s generic definition of “illicit trafficking,”
we are confident that a conviction under § 922(a)(1)(A) does
not “criminalize[] more conduct than the federal generic
offense.” Rodriguez-Castellon, 733 F.3d at 853.
Two other circuits have reached the same conclusion for
similar criminal statutes. In Kuhali v. Reno, 266 F.3d 93,
110 (2d Cir. 2001), the Second Circuit held that a federal
conviction for conspiracy to export firearms and ammunition
without a license, 18 U.S.C. § 371; 22 U.S.C. § 2778,
qualified as a firearms “trafficking” offense under 8 U.S.C.
§ 1101(a)(43)(C). The BIA in Kuhali had applied its
definition of “trafficking” from Davis, and the Second
Circuit held that this was a permissible interpretation. See
266 F.3d at 107, 110 (“[W]e hold that a conviction for the
unlicensed export of firearms necessarily exhibits a business
or merchant nature, as required to constitute a firearms
‘trafficking’ offense under the Board’s reading of [8 U.S.C.
§ 1101(a)(43)(C)].”).
Similarly, in Soto-Hernandez v. Holder, 729 F.3d 1 (1st
Cir. 2013), the First Circuit held that a conviction for
CHACON V. WILKINSON 11
unlawfully delivering a firearm under Rhode Island law
qualified as “illicit trafficking” under 8 U.S.C.
§ 1101(a)(43)(C). As in Kuhali, the court upheld the BIA’s
construction of “trafficking” in Davis: that “trafficking in
firearms” means “any activity involving the commercial
exchange of a firearm.” Soto-Hernandez, 729 F.3d at 3–4.
The First Circuit thus held “that the BIA’s definition of
‘trafficking in firearms’ in 8 U.S.C. § 1101(a)(43)(C) as
encompassing any commercial exchange, in accordance
with both dictionary definitions and the BIA’s own
precedent in a neighboring provision of the INA, is
reasonable and consistent with the statute.” Id. at 5(quotations omitted).
* * *
We hold that a conviction under 18 U.S.C.
§ 922(a)(1)(A) qualifies as an “aggravated felony” under the
INA because it categorically fits within the generic
definition of “illicit trafficking in firearms,” 8 U.S.C.
§ 1101(a)(43)(C), as the BIA permissibly construed that
phrase. Chacon is therefore ineligible for asylum. Id.§ 1158(b)(2)(A)(ii), (B)(i). For these reasons and those set
forth in our accompanying memorandum disposition, the
petition for review is
DENIED.