Williams v. Barr

• Decision Date: 27 May 2020
• Docket Number: Docket No. 18-2535,August Term, 2019
• Citation: 960 F.3d 68
• Parties: Robert Junior WILLIAMS, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

960 F.3d 68

Robert Junior WILLIAMS, Petitioner,

v.William P. BARR, United States Attorney General, Respondent.

Docket No. 18-2535

August Term, 2019

United States Court of Appeals, Second Circuit.

Submitted: March 27, 2020

Decided: May 27, 2020

Elyssa N. Williams, The Bronx Defenders, Bronx, NY, for Robert Junior Williams.

Patricia E. Bruckner, Trial Attorney; Sabatino F. Leo, Senior Litigation Counsel; Joseph H. Hunt, Assistant Attorney General, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, for William P. Barr, United States Attorney General.

Before: Jacobs, Carney, and Bianco, Circuit Judges.

Judge Jacobs concurs in a separate opinion.

Carney, Circuit Judge:

Robert Junior Williams petitions for review of a Board of Immigration Appeals ("BIA") decision subjecting him to removal from the United States on the basis of his 2016 conviction for unpermitted carrying of a pistol or revolver in violation of Connecticut General Statutes § 29-35(a). Affirming the decision of an Immigration Judge ("IJ"), the BIA rejected Williams's assertion that section 29-35(a) criminalizes more conduct than is described by the Immigration and Nationality Act ("INA") as a "firearms offense" in 8 U.S.C. § 1227(a)(2)(C), and that it therefore cannot serve as a basis for removal. In re Robert Junior Williams , No. A055 568 293 (B.I.A. Aug. 2, 2018), aff'g No. A055 568 293 (Immig. Ct. Hartford Feb. 13, 2018). The agency ruled in the alternative that, even if the state statute is broader, Williams's petition still fails because he did not demonstrate a "realistic probability" under Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007), that the state would apply its law to conduct beyond that covered by the federal law. On appeal, Williams challenges these determinations, reprising his legal arguments before the BIA.

As a matter of first impression, we address the comparative scope of the relevant state and federal statutes. We conclude on de novo review that the Connecticut statute criminalizes conduct involving "antique firearms" that the INA firearms offense definition does not, precluding Williams's removal on the basis of the state conviction. We further decide that, under Hylton v. Sessions , 897 F.3d 57 (2d Cir. 2018), the realistic probability test has no bearing here, where the text of the state statute gives it a broader reach than the federal definition. Accordingly, we GRANT the petition for review. We VACATE the order of removal and REMAND the cause to the agency with directions to terminate Williams's removal proceedings.

BACKGROUND

The relevant facts are undisputed and as stated here are drawn from the Certified Administrative Record ("CAR") on appeal.

1. Factual and procedural setting

Robert Junior Williams, a native and citizen of Jamaica born in 1989, was admitted to the United States in 2005 as a lawful permanent resident. In 2016, Williams pled guilty under the Alford doctrine, see North Carolina v. Alford , 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and was convicted in Bridgeport, Connecticut, of carrying a pistol or revolver without a permit (in violation of Connecticut General Statutes § 29-35(a) ) and of carrying a dangerous weapon (in violation of Connecticut General Statutes § 53-206 ). He received a sentence of five years’ imprisonment, to be suspended after one year's incarceration, with a conditional discharge of five years.

Based on his conviction under section 29-35(a), the Department of Homeland Security charged Williams in 2017 as removable under the INA for having been convicted of a "firearms offense" as defined by 8 U.S.C. § 1227(a)(2)(C). Williams moved to terminate his removal proceedings, arguing that his Connecticut conviction under section 29-35(a) did not qualify as an INA firearms offense under section 1227(a)(2)(C) because of the mismatch of their respective exceptions for conduct involving antique firearms. In February 2018, the IJ denied the motion, and in August of that year, the BIA affirmed the IJ's decision. The BIA concluded that the statutes were a categorical match, making Williams removable. The BIA further decided in the alternative that Williams's petition should be denied because he had failed to show a "realistic probability" that the state would prosecute conduct involving antique firearms that the federal statute did not cover. CAR at 4. Williams timely petitioned for review.

2. "Certain firearms offenses" under the INA

An alien convicted of any of a list of criminal offenses set out in the INA is subject to removal. See 8 U.S.C. § 1227(a). The list includes "certain firearm offenses," as described in section 1227(a)(2)(C). That section reads 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 section 921(a) of Title 18) in violation of any law is deportable.

Id. § 1227(a)(2)(C) (emphasis added). The definition of "firearm" is set out in section 921(a)(3) of title 18:

The term "firearm" means (A) any weapon (including a starter gun) 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.

18 U.S.C. § 921(a)(3) (emphasis added). The INA "firearm offense" thus contains a blanket exclusion for conduct involving "antique firearms." The term "antique firearm" also finds its definition in title 18: as relevant here, it means "any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898." Id. § 921(a)(16)(A). The designation of a firearm as "antique" does not mean that the firearm is inoperable.

3. The Connecticut statute: Connecticut General Statutes § 29-35(a)

Section 29-35(a) of the Connecticut General Statutes generally prohibits the "carry[ing]" of a pistol or revolver in public without a permit. Its primary prohibition reads, "No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same ...." Conn. Gen. Stat. § 29-35(a) (emphasis added). Another section in the same chapter instructs that the terms "pistol" and "revolver" as used in section 29-35 "mean any firearm having a barrel less than twelve inches in length." Id. § 29-27. Neither section (nor any other that we have been directed to) further defines the term "carry[ing]" as used in the primary prohibition.

In addition to stating the general prohibition, section 29-35(a) establishes several exceptions. One is key to Williams's argument here. It reads: "The provisions of this subsection shall not apply to ... any person transporting an antique pistol or revolver ...." Id. § 29-35(a) (emphasis added).¹ The section explains "transporting" as follows, distinguishing between "transporting" generally and "transporting" by motor vehicle:

For the purposes of this subsection, ... "transporting a pistol or revolver" means transporting a pistol or revolver that is unloaded and, if such pistol or revolver is being transported in a motor vehicle, is not readily accessible or directly accessible from the passenger compartment of the vehicle or, if such pistol or revolver is being transported in a motor vehicle that does not have a compartment separate from the passenger compartment, such pistol or revolver shall be contained in a locked container other than the glove compartment or console.

Id. The complete text of section 29-35 is set out in an Appendix to this opinion, for the convenience of the reader.

DISCUSSION

Our jurisdiction to review a final order of removal concerning an alien who has allegedly committed an INA firearms offense is limited to "constitutional claims or questions of law." 8 U.S.C. §§ 1252(a)(2)(C), (D) ; 1227(a)(2)(C). Whether a state statute of conviction is a categorical match to the ground of removability asserted by the agency is a question of law, which we review de novo . See Pierre v. Holder , 588 F.3d 767, 772 (2d Cir. 2009).

To determine whether a state conviction is a removable offense as included on the INA's list, we employ the "categorical approach," in which we "look not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the generic federal definition." Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (internal quotation marks omitted). A state offense makes a categorical match with a generic federal offense "only if a conviction of the state offense necessarily involved facts equating to the generic federal offense." Id. (emphasis added) (alterations and internal quotation marks omitted). If the state statute criminalizes conduct that the federal offense does not, the two are not categorical matches and a conviction under the state statute cannot serve as a predicate for removal under the INA. As we have regularly observed in applying this approach, "only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant" to our analysis. Pascual v. Holder , 707 F.3d 403, 405 (2d Cir. 2013) (internal quotation marks omitted).

I. Comparison of the federal and state statutes

The central question before us is whether the "firearms offense" defined in the INA, as codified in section 1227(a)(2)(C), and the Connecticut offense set out in section 29-35(a), concerning the public carrying of pistols and revolvers without a permit, are...