Petitions for Review of an Order of the Board of Immigration
DAVIS, HIGGINSON, and WILLETT, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE.
Flores Abarca seeks review of a Board of Immigration Appeals
(BIA) decision holding that he is statutorily ineligible for
cancellation of removal because of a 2004 firearm
transportation conviction. We first conclude that Flores
Abarca failed to exhaust his challenge to the immigration
court's jurisdiction based on alleged defects in his
Notice to Appear. On the merits, we hold that the Oklahoma
misdemeanor of transporting a loaded firearm in a motor
vehicle is not one of the firearms offenses listed under 8
U.S.C. § 1227(a)(2)(C). Accordingly, this conviction
does not disqualify Flores Abarca from seeking cancellation
of removal. We grant the petition for review, vacate the
BIA's order, and remand for further proceedings.
Abarca is a native and citizen of Mexico. He entered the
United States unlawfully in 1988, when he was five years old.
He currently lives in Oklahoma and has four U.S. citizen
children. In January 2004, Flores Abarca pleaded guilty to
the Oklahoma misdemeanor offense of transporting a loaded
firearm in a motor vehicle. See OKLA. STAT. tit. 21
§ 1289.13. In May 2015, the Department of Homeland
Security initiated removal proceedings against Flores Abarca,
alleging that he was present in the United States without
having been admitted or paroled. The Notice to Appear was
personally served on Flores Abarca and instructed him to
appear before an immigration judge in Dallas at a date and
time to be set. Flores Abarca later received a notice of
hearing with a specific date and time, and he personally
appeared in Dallas immigration court on October 19, 2015. At
this hearing, Flores Abarca acknowledged receipt of the
Notice to Appear, conceded his removability, and stated that
he wished to seek cancellation of removal.
of removal is a form of relief available to certain otherwise
removable aliens. See 8 U.S.C. § 1229b. To be
eligible for this relief, a nonpermanent resident such as
Flores Abarca must (1) have been continuously physically
present in the United States for at least 10 years; (2)
demonstrate good moral character during this period; (3) not
be convicted of an offense under 8 U.S.C. § 1182(a)(2),
§ 1227(a)(2), or § 1227(a)(3); and (4)
"establish that removal would result in exceptional
and extremely unusual hardship to the alien's spouse,
parent, or child, who is a citizen of the United States or an
alien lawfully admitted for permanent residence." 8
U.S.C. § 1229b(b)(1).
Abarca requested cancellation of removal based on hardship to
his four young children and his ailing lawful permanent
resident parents. The immigration judge asked for the
government's views regarding Flores Abarca's
eligibility in light of his firearm transportation
conviction. The government stated that it believed Flores
Abarca was eligible for cancellation of removal, and that it
did not believe that his firearm transportation conviction
fell under the statute's firearms provision. The
immigration judge nonetheless expressed concern about this
conviction and ordered further briefing on the issue. In its
brief, the government revised its original position and
argued that Flores Abarca is ineligible for cancellation of
removal because of his firearm transportation conviction.
considering the parties' briefs, the immigration judge
held that Flores Abarca's conviction for transporting a
loaded firearm is a firearms offense described under 8 U.S.C.
§ 1227(a)(2)(C) and renders him ineligible for
cancellation of removal as a matter of law. Flores Abarca
appealed his order of removal to the BIA. On March 3, 2017,
the BIA affirmed the immigration court in a published and
precedential opinion. See Matter of Flores-Abarca,
26 I & N Dec. 922 (B.I.A. 2017). Flores Abarca timely
moved for reconsideration. While his motion for
reconsideration was pending, Flores Abarca filed a motion to
remand to the immigration court to permit him to apply for
adjustment of status. The BIA denied both motions. Flores
Abarca now petitions for review of the BIA's decisions.
first time on appeal, Flores Abarca seeks to challenge
alleged defects in his Notice to Appear (NTA). This court
generally lacks jurisdiction to consider issues that were not
first presented to the BIA. See Omari v. Holder, 562
F.3d 314, 318-19 (5th Cir. 2009); see also 8 U.S.C.
§ 1252(d) ("A court may review a final order of
removal only if - (1) the alien has exhausted all
administrative remedies available to the alien as of
right"). Flores Abarca nonetheless contends that he can
raise this issue at any time because defects in the NTA
undermine the immigration court's subject matter
jurisdiction. This argument is foreclosed by our precedent.
See Pierre-Paul v. Barr, 930 F.3d 684, 693 (5th Cir.
2019) (holding that 8 C.F.R. § 1003.14 is a
non-jurisdictional claim processing rule, defects in which
are waivable). Because Flores Abarca did not properly exhaust
this issue, we lack jurisdiction to consider it. We therefore
turn to the merits.
held that Flores Abarca is ineligible for cancellation of
removal as a matter of law because "the crime of
transporting a loaded firearm under Oklahoma law is
categorically a firearms offense under" 8 U.S.C. §
1227(a)(2)(C). Flores-Abarca, 26 I & N Dec. at
924. Because the BIA reached an independent legal conclusion
on this question, "our review is confined to the
BIA's analysis and reasoning." Enrique-Gutierrez
v. Holder, 612 F.3d 400, 407 (5th Cir. 2010). With
limited exceptions, we may "only affirm the BIA on the
basis of its stated rationale for ordering an alien removed
from the United States." Id. The sole issue
before us is therefore the purely legal question of whether
Flores Abarca's Oklahoma firearm transportation
conviction is categorically a disqualifying firearms offense
under § 1227(a)(2)(C). We have jurisdiction to consider
this legal issue. See 8 U.S.C. § 1252(a)(2)(D).
first review the relevant statutory framework. A nonpermanent
resident does not qualify for cancellation of removal if he
has "been convicted of an offense under section
1182(a)(2), 1227(a)(2), or 1227(a)(3)" of Title 8 of the
U.S. Code. 8 U.S.C. § 1229b(b)(1)(C). The specific
provision at issue in this case is § 1227(a)(2)(C),
which renders deportable "[a]ny alien who at any time
after admission is convicted" of certain firearms
offenses. As a threshold matter, Flores Abarca contends that
§ 1227(a)(2)(C) does not apply to him because he was
never admitted to the United States.
argument is foreclosed by our precedent. Flores Abarca was
not charged with being removable under § 1227(a)(2)(C).
This provision is relevant to this case only because it is
cross-referenced in the cancellation of removal statute.
See § 1229b(b)(1)(C). We have held that this
statutory cross-reference simply "identif[ies] the
kinds of offenses that will make an alien ineligible
for cancellation of removal." Nino v. Holder,
690 F.3d 691, 697 (5th Cir. 2012) (emphasis added). "For
purposes of that ineligibility, it does not matter when the
offense occurred in relation to the alien's
admission." Id. at 697-98; see also Aleman
v. Holder, 541 Fed.Appx. 457, 459 (5th Cir. 2013)
("Nino v. Holder held the plain language of
§ 1229b(b)(1)(C) unambiguously refers to the elements of
the offenses set forth in the three statutes and does not
refer to any aspects of immigration law.").
Abarca is therefore ineligible for cancellation of removal if
he was convicted of an offense listed in §
1227(a)(2)(C), regardless of whether he had been admitted to
the United States at the time of conviction. This provision
reads in full:
(C) Certain firearm offenses
Any 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 ...