Gordon v. Barr

• Decision Date: 08 July 2020
• Docket Number: No. 19-1539,19-1539
• Citation: 965 F.3d 252
• Parties: Conroy Steve GORDON, Petitioner, v. William P. BARR, Attorney General, Respondent. National Immigration Project of the National Lawyers Guild, Amicus Supporting Petitioner.
• Court: U.S. Court of Appeals — Fourth Circuit

965 F.3d 252

Conroy Steve GORDON, Petitioner,

v. William P. BARR, Attorney General, Respondent.National Immigration Project of the National Lawyers Guild, Amicus Supporting Petitioner.

No. 19-1539

United States Court of Appeals, Fourth Circuit.

Argued: May 5, 2020

Decided: July 8, 2020

ARGUED: Samantha Shinsato Lee, WILEY REIN, LLP, Washington, D.C.; Jenny Kim, CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION, Washington, D.C., for Petitioner. Sabatino Fioravante Leo, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Adina Appelbaum, CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION, Washington, D.C., for Petitioner. Joseph H. Hunt, Assistant Attorney General, Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Khaled Alrabe, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Boston, Massachusetts, for Amicus Curiae.

Before KING, KEENAN, and RUSHING, Circuit Judges.

Petition for review granted, order of removal vacated, and remanded with directions by published opinion. Judge Keenan wrote the opinion, in which Judge King and Judge Rushing joined.

BARBARA MILANO KEENAN, Circuit Judge:

In this case, we consider whether Conroy Gordon's prior misdemeanor conviction under Virginia Code § 18.2-280(A), for willful discharge of "any firearm" in a public place without resulting bodily injury, qualifies as a federal "firearm offense" for purposes of removal under the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(C) (the INA removal statute). An immigration judge (IJ) concluded that because "antique firearms" are excluded from the federal definition of a firearm offense but are not excluded from coverage under Virginia Code § 18.2-280(A), Gordon had not committed a removable offense. However, the Board of Immigration Appeals (the BIA) disagreed, ordering Gordon's removal. The BIA concluded that Gordon was required, but failed, to show "that there has been a [conviction] under [the Virginia statute] for conduct involving an antique firearm," or that a Virginia court had issued a decision "explicitly" stating that Virginia Code § 18.2-280(A) includes the use of antique firearms.

Upon our review, we conclude that the government has failed to meet its burden of proving that Gordon is subject to removal. We hold that the plain language of Virginia Code § 18.2-280(A), as supported by later acts of Virginia's legislature and by decisions of its appellate courts, prohibits conduct involving the use of "any firearm," including antique firearms. Thus, Gordon was not required to identify a prosecution under the Virginia statute involving an antique firearm to defend against removal. Accordingly, because the conduct punishable under Virginia Code § 18.2-280(A) is broader than the conduct encompassed by the federal definition of a "firearm offense," Gordon's conviction under the Virginia statute was not a basis for his removal under the INA removal statute. For this reason, we grant Gordon's petition for review, vacate the BIA's order of removal, and remand with direction that the government facilitate Gordon's return to the United States.

I.

Conroy Gordon, a citizen of Jamaica, was admitted to the United States in 1992, at the age of 23, as a lawful permanent resident. Gordon obtained permanent resident status under 8 U.S.C. § 1153(a)(2)(B), based on his status as an unmarried child of an "alien" who lawfully had been admitted for permanent residence. In 2008, Gordon was convicted in Virginia of a misdemeanor offense, namely, the willful discharge of "any firearm" in a public place without resulting bodily injury, in violation of Virginia Code § 18.2-280(A) (the Virginia conviction). Gordon was sentenced to ten days’ imprisonment to be served on weekends.

Virginia Code § 18.2-280(A) provides:

If any person willfully discharges or causes to be discharged any firearm in any street in a city or town, or in any place of public business or place of public gathering, and such conduct results in bodily injury to another person, he shall be guilty of a Class 6 felony. If such conduct does not result in bodily injury to another person, he shall be guilty of a Class 1 misdemeanor.¹

(emphasis added).

In 2017, about nine years after Gordon's misdemeanor conviction, the Department of Homeland Security (DHS) issued Gordon a notice to appear, charging him as removable based on the Virginia conviction. DHS contended that the Virginia conviction qualified as a removable offense under the INA removal statute, which defines "[c]ertain firearm offenses" as follows:

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 (as defined in [ 18 U.S.C. § 921(a) ] ) in violation of any law is deportable.²

8 U.S.C. § 1227(a)(2)(C) (emphasis added). A "firearm" is defined in 18 U.S.C. § 921(a)(3) as:

(A) any weapon ... which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

(emphasis added). Thus, the federal definition of "firearm" that applies to the INA removal statute explicitly excludes antique firearms. In contrast, the statutory language in Virginia Code § 18.2-280(A) applies to "any firearm," and does not state an exception for antique firearms.

Relying on this distinction, Gordon filed a motion to terminate the removal proceedings, arguing that the Virginia conviction did not qualify as a removable firearm offense under the INA. The IJ granted Gordon's motion, concluding that Virginia Code § 18.2-280(A), which does not provide an exception for antique firearms and encompasses use of "any firearm," is broader in scope than the INA's federal firearm offense.

The government appealed the IJ's decision to the BIA. In reversing the IJ's decision, the BIA acknowledged that the Virginia statute was facially broader than the INA's federal firearm offense. However, relying on dictum in the Supreme Court's decision in Moncrieffe v. Holder , 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), the BIA held that Gordon was required, but failed, to show there was a "realistic probability" that the Commonwealth would prosecute a case under Virginia Code § 18.2-280(A) when the firearm in question was an "antique." Moncrieffe , 569 U.S. at 205-06, 133 S.Ct. 1678 (stating that when employing the categorical approach to compare the federal firearm offense with a state firearm offense lacking an antique weapon exception, a respondent "would have to demonstrate that the State actually prosecutes the relevant offense in cases involving antique firearms").

Because Gordon presented neither a decision by a Virginia court in which a defendant had been convicted under Section 18.2-280(A) for using an antique firearm, nor a decision by a Virginia court that explicitly defined the word "firearm" as used in Section 18.2-280(A) to include antique firearms, the BIA held that Gordon failed to make the required showing and was removable under the INA removal statute.³ The BIA ultimately entered an order of removal.

Gordon filed this petition for review and a motion for stay of removal. After this Court denied the motion for stay, Gordon was removed to Jamaica. Gordon now asks that we grant his petition for review and order the United States government to facilitate his return to this country.

II.

A.

The central issue before us is whether the willful discharge of "any firearm" in a public place without resulting bodily injury, as prohibited by Virginia Code § 18.2-280(A) (alternatively, the Virginia offense), renders a noncitizen removable under the INA removal statute. Gordon argues that the government has failed to demonstrate that the Virginia offense qualifies as a removable offense, because the plain language of the statute, as well as Virginia appellate court decisions, establish that the discharge of "any firearm," including antique firearms, is prohibited under Virginia Code § 18.2-280(A) (emphasis added).

In response, the government maintains that neither the statutory language nor the cited Virginia court decisions directly address whether the term "any firearm," as used in Section 18.2-280(A), encompasses antique firearms. According to the government, Gordon was required under the Moncrieffe dictum to identify a decision by a Virginia court in which an individual was convicted under Section 18.2-280 for discharging an antique firearm in a public place. Because Gordon has not identified such a decision, the government argues that the BIA correctly concluded that Gordon is subject to removal based on his Virginia conviction. We disagree with the government's position.

B.

We review de novo the BIA's decision. Omargharib v. Holder , 775 F.3d 192, 196 (4th Cir. 2014). Although our review of a decision involving the BIA's interpretation of the INA generally warrants deference, no such deference is owed to the BIA's construction of state law, which does not lie within the BIA's expertise.⁴ Ramirez v. Sessions , 887 F.3d 693, 702 (4th Cir. 2018) ; Omargharib , 775 F.3d at 196.

In asserting that Gordon is removable based on his Virginia conviction, the government bears the burden of proving removability "by clear and convincing evidence." 8 U.S.C. § 1229a(c)(3)(A) ; Omargharib , 775 F.3d at 196 ; Salem v. Holder , 647 F.3d 111, 114 (4th Cir. 2011) ; see also 8 C.F.R. § 1240.8(a). Thus, in the present case, the government bears the burden of proving that Gordon's Virginia conviction qualifies as a federal "firearm offense" for purposes of...