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Case Name:
Case Number: Date Filed: 
98-70529 02/15/01 



Petitioner,                                           No. 98-70529

v.                                                    INS No.
SERVICE,                                              OPINION

Petition to Review a Decision of the
Board of Immigration Appeals

Argued and Submitted
January 11, 2001--Pasadena, California

Filed February 15, 2001

Before: Stephen S. Trott, Sidney R. Thomas and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Thomas

Raul M. Montes, Armando M. Montes and Gilbert M.
Montes; Montes, Montes & Montes; San Diego, California,
for the petitioner.

Brian Slocum and Margaret Perry; United States Department
of Justice; Washington, D.C., for the respondent.

THOMAS, Circuit Judge:

We consider in this appeal whether negligently discharging
a firearm in violation of California Penal CodeS 246.3 is a
deportable firearms offense pursuant to 8 U.S.C.S 1227. We
conclude that it is, and dismiss Valerio-Ochoa's petition for
review for lack of jurisdiction pursuant to IIRIRA
S 309(c)(4)(G).


Jose Valerio-Ochoa is a thirty-two-year-old native and citi-
zen of Mexico, and a lawful permanent resident of the United
States. He first entered the United States without inspection
from Mexico in 1983. On December 1, 1990, he adjusted his
status to that of lawful permanent resident pursuant to INA
S 210(A), the Immigration Reform and Control Act of 1986.
He has joint legal custody of a six-year-old United States citi-
zen daughter by his former wife, Nancy Lopez, from whom
he divorced in March, 1997. He has been employed since his
arrival in the United States, first as a fieldworker, and later as
an employee at various scaffolding companies.

On October 12, 1995, Valerio-Ochoa was convicted, by
guilty plea, of discharging a firearm in a grossly negligent

manner in violation of California Penal Code S 246.3. In his
written guilty plea, Valerio-Ochoa initialed a provision
wherein he acknowledged that his plea of guilty might
adversely affect his immigration status. He served 150 days'
custody in a sheriff's honors camp, followed by three years'
probation. Valerio-Ochoa has no other criminal record.

On December 15, 1995, the Immigration and Naturalization
Service ("INS") served him with an Order to Show Cause
why he was not deportable under INA S 241(a)(2)(C) based
upon the California conviction. Valerio-Ochoa contested
deportability. He maintained that because his conviction
"sounded in negligence," and was not a criminal use of a fire-
arm, he did not fit within the meaning of the firearm provision
of the INA, S 241(a)(2)(C). The immigration judge found that
Valerio-Ochoa's conviction for discharging a firearm conclu-
sively established deportability under S 241(a)(2)(C). The
Board of Immigration Appeals affirmed the immigration
judge's order. This timely petition for review followed.

Because the final agency order was entered after October
30, 1996, and deportation proceedings were initiated before
April 1, 1997, this petition is governed by the transitional
rules of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208,
110 Stat. 3009 (Sept. 30, 1996), as amended by  Pub. L. No.
104-302, 110 Stat. 3656 (Oct. 11, 1996).


[1] Under the transitional rules,"there shall be no appeal
permitted in the case of an alien who is . . . deportable by rea-
son of having committed a criminal offense" enumerated in
section 241(a)(2)(C) of the Immigration and Nationality Act
("INA"), codified at 8 U.S.C. S 1227 (a)(2)(C). IIRIRA
S 309(c)(4)(G). Thus, if Valerio-Ochoa committed one of the
enumerated offenses and is charged with doing so in an Order
to Show Cause served by the INS, we lack jurisdiction to con-

sider his petition for review. Hernandez-Montiel v. INS, 225
F.3d 1084, 1090 (9th Cir. 2000). We do, however, have juris-
diction to determine our own jurisdiction under the transi-
tional rules. Scales v. INS, 232 F.3d 1159, 1161 (9th Cir.
2000). In the context of IIRIRA S 309(c)(4)(G), this means
we have jurisdiction to decide whether Valerio-Ochoa has
committed one of the offenses enumerated in 8 U.S.C.S 1227

Valerio-Ochoa argues that a conviction for violation of Cal-
ifornia Penal Code S 246.3 does not qualify as a predicate
firearms offense under IIRIRA because (1) Congress did not
intend to include negligent conduct as a qualifying offense,
and (2) "pure" firearms offenses do not fall within the orbit
of S 1227--that is, that S 1227 is limited to non-firearms
offenses involving the use of firearms.


[2] The statute of which Valerio-Ochoa was convicted, dis-
charging a firearm in a grossly negligent manner, provides:

      Except as otherwise authorized by law, any person
      who willfully discharges a firearm in a grossly negli-
      gent manner which could result in injury or death to
      a person is guilty of a public offense and shall be
      punished in the county jail not exceeding one year,
      or by imprisonment in the state prison.
1 Valerio-Ochoa also claims that section 309(c)(4)(G) unconstitutionally
violates the separation of powers requirement inherent in Article III of the
United States Constitution. However, because the judicial review limita-
tions of IIRIRA's transitional rules do not preclude us from considering
the merits of Valerio-Ochoa's only substantive claim in this case--that is,
his claim that his firearms offense does not render him "deportable"--
Valerio-Ochoa does not have standing to challenge the constitutionality of
those provisions. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,
102-04 (1988) (an injury in fact is a constitutional prerequisite to Article
III jurisdiction).

California Penal Code S 246.3.

[3] This statute was enacted to prevent revelers from dis-
charging firearms on holidays such as New Year's Eve and
Independence Day. People v. Alonzo, 13 Cal. App. 4th 535,
539 (1993). Nonetheless, California courts have found that a
violation of this provision can constitute a "serious felony"
for purposes of that state's "three strikes" law. People v. Les-
lie, 47 Cal. App. 4th 198, 201 (2000).

Valerio-Ochoa maintains that California Penal Code
S 246.3 criminalizes negligent conduct, and therefore cannot
constitute a predicate offense under IIRIRA. The California
statute does not, however, criminalize purely negligent con-
duct; only "willful" discharges of firearms violate the statute,
not negligent discharges.

The reach of 8 U.S.C. S 1227 (a)(2)(C) is certainly broad
enough to include such a statute. It provides, in relevant part,
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 deport-
able." 8 U.S.C. S 1227(a)(2)(C) (emphasis supplied). From a
plain reading of the statute, it is clear that Congress intended
to embrace the entire panoply of firearms offenses. As the
Fourth Circuit noted in Hall v. INS, 167 F.3d 852, 855 (4th
Cir. 1999):

      Its comprehensive list of gerunds captures all varie-
      ties of conduct relating to firearms transactions. It
      includes inchoate as well as completed offenses,
      enumerating not only the sale, use, ownership, or
      possession of firearms, but also any attempt or con-
      spiracy to do so. Finally, it encompasses convictions

      "under any law" of engaging or attempting to engage
      in such transactions. This wide-ranging text evinces
      an expansive purpose -- to render deportable those
      aliens that commit firearms offenses of any type.

[4] Clearly, under any fair reading, the act of "willfully dis-
charg[ing] a firearm in a grossly negligent manner" in viola-
tion of Cal. Penal Code S 246.3 qualifies as "using" a firearm
under 8 U.S.C. S 1227(a)(2)(C).


Valerio-Ochoa's argument that S 1227(a)(2)(C) does not
encompass "pure" firearms convictions, but only those con-
victions in furtherance of another crime, is also not tenable.
Indeed, the subsection title "Certain Firearms Offenses" belies
the contention that firearms offenses are not embraced within
its coverage. See Zimmerman v. Oregon Dep't of Justice, 170
F.3d 1169, 1175 (9th Cir. 1999) (noting that section headings
are tools available for statutory construction). Of course, the
plain language of the statute does so as well: it includes a con-
viction in violation "of any law;" it does not restrict coverage
to "any other law." Indeed, including a conviction "under any
law" and further providing that use of the firearm also be "in
violation of any law" supports the construction that Congress
intended to include both "pure" firearms offenses and other
crimes in which a firearm was employed.

Our sister circuits have construed S 1227 as reaching both
"pure" firearms offenses and the use of firearms in connection
with other crimes. Hall, 167 F.3d at 855-56 (making a false
statement to a federally licensed firearms dealer is a deport-
able offense); Berehe v. INS, 114 F.3d 159, 161 (10th Cir.
1997) (use of a firearm in connection with the crime of assault
is a deportable offense); Vue v. INS, 92 F.3d 696, 701 (8th
Cir. 1996) (aggravated robbery constituted a deportable fire-
arms offense when a weapon was used in connection with the
crime); see also Duldulao v. INS, 90 F.3d 396 (9th Cir. 1996)

(upholding deportation under S 241(a)(2)(C) based on two
unspecified firearms offenses in violation of Hawaii law).

Therefore, we conclude that S 1227 includes the listed fire-
arms offenses regardless of whether another crime was com-


In summary, a conviction under Cal. Penal Code S 246.3
constitutes a deportable offense under 8 U.S.C.S 1227.
Because Congress has withdrawn our jurisdiction to review
directly deportations founded on the offenses enumerated in
S 1227, we lack jurisdiction to consider this petition for
review. IIRIRA S 309(c)(4)(G).



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