Rogelio Flores-Abarca v. William Barr, U. S. Atty

Case: 17-60236 Document: 00515080419 Page: 1 Date Filed: 08/16/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-60236 FILED August 16, 2019 Lyle W. Cayce ROGELIO FLORES-ABARCA, Clerk Petitioner v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL, Respondent Petitions for Review of an Order of the Board of Immigration Appeals Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges. STEPHEN A. HIGGINSON, Circuit Judge: Rogelio 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. Case: 17-60236 Document: 00515080419 Page: 2 Date Filed: 08/16/2019 No. 17-60236 I. Flores 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. Cancellation 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). Flores Abarca requested cancellation of removal based on hardship to his four young children and his ailing ...

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