On Petition for Review from an Order Dated December 10, 2004 of the Board of Immigration Appeals (Board No. A41-090-468) Immigration Judge Daniel A. Meisner.
The opinion of the court was delivered by: Weis, Circuit Judge
Before: SMITH, WEIS and ROTH, Circuit Judges.
The issue in this case is whether the petitioner's conviction under 18 U.S.C. § 922(a)(3) constitutes an "aggravated felony" of "illicit trafficking in firearms" under Immigration and Nationality Act ("INA") §§ 101(a)(43) and 237(a)(2)(A)(iii). 8 U.S.C. §§ 1101(a)(43)(C), 1227(a)(2)(A)(iii). We conclude that the petitioner's offense is not an aggravated felony under the INA because § 922(a)(3) does not include a "trafficking element."
Petitioner Warren Hilarion Eusta Joseph, a lawful permanent resident of the United States and a native and citizen of Trinidad, is subject to a removal order under §§ 237(a)(2)(A)(iii) and (a)(2)(C) of the INA, 8 U.S.C. § 1227 (a)(2)(A)(iii) & (a)(2)(C), on the grounds that his conviction under 18 U.S.C. § 922(a)(3) constituted an "aggravated felony" and a removable "firearms offense."
From 1988 to 1997, petitioner served in the United States Army, including service in Operation Desert Storm and Operation Desert Shield. During this enlistment he received numerous awards and was honorably discharged in 1997.
On October 10, 2001, petitioner was convicted in the United States District Court for the Eastern District of New York for violations of 18 U.S.C. §§ 922(a)(3) and 924(a)(1)(D). Section 922(a)(3) makes it illegal for a person, other than a licensed importer, dealer or manufacturer, to transport into or receive in the state where he resides firearms purchased or otherwise obtained by that person outside of his state of residence. Id. Section 924(a)(1)(D) provides that it is illegal to "willfully violate any other provision of this chapter," which includes § 922.
In sentencing petitioner, the court departed downward from the then-mandatory sentencing guidelines range and imposed probation only. Petitioner, however, violated his probation by, inter alia, failing to inform his probation officer that he had moved and for failing a drug test. He was incarcerated for six months for those violations.
The government initiated removal proceedings and an immigration judge conducted a hearing on July 12, 2004. Petitioner testified about his criminal conviction, admitting that he obtained weapons for persons to whom he owed money. He further testified that he had turned himself in to authorities when ATF contacted him and that he later pleaded guilty to violations of §§ 922(a)(3) and 924(a)(1)(D).
Petitioner filed for asylum, withholding of removal, and relief under the Convention Against Torture. He testified that he believed he would be persecuted if he returned to Trinidad because he is Christian and because he served in the United States Army. Petitioner also argued that he is a national of the United States under 8 U.S.C. § 1101(a)(22), and is thus not an alien subject to removal. He based this claim on the fact that he took the Oath of Enlistment upon entry into the United States Army and thus is "a person who, though not a citizen of the United States, owes a permanent allegiance to the United States." 8 U.S.C. § 1101(a)(22).
The IJ concluded that (1) petitioner was not a national of the United States; (2) he was removable because he was convicted of a weapons violation and because he was convicted of an aggravated felony; (3) he was not eligible for asylum because he had been convicted of an aggravated felony; and (4) he was not prima facie eligible for naturalization because the aggravated felony conviction prohibited him from establishing that he has "good moral character."
In his appeal to the BIA, petitioner asserted three claims for relief. First, he asserted that the IJ erred in determining that petitioner was not a national of the United States. Second, he argued the government should be equitably estopped from removing him because of the gross delay in deciding earlier applications for removal. Third, he contended that the IJ erred in determining that ...