18-2535 Williams v. Barr
In the United States Court of Appeals For the Second Circuit ______________
August Term, 2019
(Submitted: March 27, 2020 Decided: May 27, 2020)
Docket No. 18-2535 ______________
ROBERT JUNIOR WILLIAMS,
Petitioner,
–v.–
WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,
Respondent. ______________
B e f o r e:
JACOBS, CARNEY, and BIANCO, Circuit Judges. ______________
Robert Junior Williams petitions for review of a 2018 Board of Immigration Appeals (“BIA”) decision ordering him removed based on his 2016 Connecticut state conviction for carrying a pistol or revolver without a permit, in violation of Connecticut General Statutes § 29-35(a). The BIA rejected Williams’s argument that section 29-35(a) criminalizes conduct that is not a “firearms offense” under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(C), and that section 29-35(a) is therefore not a removable offense. Williams’s argument turns on a comparison of the “antique firearms” transportation exception of section 29-35(a) and the general exception for “antique firearms” found in the definition of an INA “firearms offense.” We conclude that the BIA erred in ruling that the exceptions are of equivalent reach and that the state statute is a categorical match to the federal statute. Furthermore, because our conclusion is determined by the text of the relevant statutes, the “realistic probability” test does not apply here, contrary to the BIA’s alternative holding. See Hylton v. Sessions, 897 F.3d 57, 63 (2d Cir. 2018). The petition for review is GRANTED. The order of removal is VACATED, and the cause is REMANDED to the BIA with directions to terminate Williams’s removal proceedings.
GRANTED, VACATED, AND REMANDED.
Judge Jacobs concurs in a separate opinion. ______________
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. ______________
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),
2 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 (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 58 (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 (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
3 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:
4 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
5 . . . .” 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
1The definition of “antique pistol or revolver” used by Connecticut law in section 29-35(a) is essentially identical to that relied on by the INA and set forth in 18 U.S.C. § 921(a)(16), quoted above. See Conn. Gen. Stat. § 29-33(f) (providing, “An antique pistol or revolver, for the purposes of this section, means any pistol or revolver which was manufactured in or before 1898 and any replica of such pistol or revolver [subject to certain limitations].”). Neither party urges otherwise.
6 conviction categorically fits within the generic federal definition.” Moncrieffe v. Holder,
569 U.S. 184, 190 (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
categorical matches. The answer to that question, in turn, depends on whether the
statutes’ respective exceptions for use of antique firearms under federal and state law
are coextensive. We turn to that question now.
A. Loaded and unloaded firearms
We first examine the most glaring distinction between the two statutes: their
treatment of conduct related to antique firearms that are loaded. Connecticut
criminalizes unlicensed carrying and transportation of loaded antique firearms; the
federal definition excludes such conduct. The Connecticut exception for “transporting”
antique pistols and revolvers by its terms applies only to “unloaded” pistols and
revolvers. Conn. Gen. Stat. § 29-35(a) (“’transporting a pistol or revolver’ means
7 transporting a pistol or revolver that is unloaded”). In contrast, section 921(a)(3) of title
18, whose definition of “firearm” the INA adopts, provides without reference to
whether the firearm is loaded that “[t]he term ‘firearm’ . . . does not include an antique
firearm.” The state prohibition and INA offense definition therefore do not match. In its
decision, the BIA failed to make any mention of this distinction. The textual difference is
fatal, however, to its decision that Williams’s Connecticut conviction is a removable
offense.
While we need not go further to find that the state statute is not a categorical
match, we do so only to confirm our reading.
B. “Carrying” and “transporting”
In its written opinion, the BIA focused on what in its view was the absence of a
meaningful distinction between “carrying” and “transporting.” Even considering this
aspect of the statute alone, however, we would hold that the state statute is
categorically broader than the federal definition.
The BIA read the state’s explicit exception for “transportation” of (unloaded)
antique pistols or revolvers as establishing that “carrying” an antique pistol or revolver,
too, was fully exempt from the statute’s general prohibition. The BIA found the
distinction urged by Williams between “carrying” and “transporting” antique firearms
to be “exceedingly implausible,” stating that “the respondent’s distinction between
‘transportation’ and ‘carrying’ makes no practical sense in this context,” because “it is
evident that one who ‘transports’ an antique pistol must also ‘carry’ it.” CAR at 3–4. It
reasoned that the exception for transporting antique firearms must be read as also
exempting “carrying” such firearms: the statute may not be understood as “extending
an ‘antique’ exception to one who moves about while carrying a pistol or revolver
without a permit, yet as denying the exception to one who commits the lesser act of
8 standing still while doing so.” Id. at 4 (emphases omitted). We think the BIA dismissed
the statute’s distinction between “carrying” and “transporting” too quickly, without
giving due deference to the Connecticut legislature’s intentions.
Textual analysis. As described above, the text of the Connecticut statute excludes
only the “transporting” of “unloaded” antique pistols or revolvers from its general
prohibition on “carrying” unpermitted pistols and revolvers “upon [one’s] person.”
Conn. Gen. Stat. § 29-35(a). The INA definition of “firearm offense,” in contrast,
expressly excludes all conduct involving antique firearms.
Although the state statute is not a paragon of clarity, the BIA misconstrued the
statute and misunderstood Williams’s argument. First, we cannot overlook the
legislature’s wording choices so readily. See United States v. Mason, 692 F.3d 178, 182 (2d
Cir. 2012) (“[T]he use of different words within the same statutory context strongly
suggests that different meanings were intended.” (internal quotation marks omitted)).
The legislature differentiated “carrying” from “transporting”: although we will leave a
definitive construction of section 29-35(a) to the Connecticut courts, the statute’s
framing convinces us that the legislature intended “carrying” to encompass a broader
range of activity than “transporting.”
The six “transporting” exceptions to the carrying prohibition focus on moving
firearms from one place to another for a designated purpose. This is suggested not only
by the differential word choice, but the structure of the subsection—moving from a
broad general prohibition on unpermitted public “carrying,” through specific
exceptions for classes of people who are discharging their public duties, and then to
exceptions for “transporting” that address movement for specific purposes done under
specific conditions, and, presumably, that were designed to address specific needs and
risks.
9 Thus, the first sentence of the statute states the general prohibition for the
“carrying” on one’s person, and outside of one’s home or place of business, of
unpermitted pistols and revolvers. Conn. Gen. Stat. § 29-35(a). Then, the statute
exempts from the prohibition several classes of people: “parole officer[s] or peace
officer[s],” federal law enforcement officials, and members of the armed forces, if
“carrying” a pistol or revolver in circumstances related to their public safety roles. Id.
Only then does the statute delineate several exceptions related to the
“transportation” of such firearms: in approximate terms, its exempts their
“transportation” (1) as “merchandise”; (2) to a residence or place of business after
purchase, as “originally wrapped at the time of sale” at a store; (3) for repair purposes;
(4) for “competitions” or training purposes; and (5) for certain authorized testing
purposes. Id.; see also State v. Lutters, 270 Conn. 198, 210, 853 A.2d 434, 441 (Conn. 2004)
(“[T]he legislature has placed severe restrictions on the manner in which an unlicensed
handgun may be transported in accordance with . . . one of . . . six . . . exceptions.”). The
last of the six listed “transportation” exceptions refers to the transporting of an antique
firearm. Thus, in prosecuting a violation of the unlicensed “carry” prohibition, the
exceptions are in the nature of a defense: that the firearm was being moved outside the
home or place of business for a particular authorized purpose and in a particular
authorized fashion. These give us additional reasons to disagree with the BIA’s
conclusion that the statute implies that Connecticut law generally allows “carrying” an
antique firearm without a license.
Connecticut case law. This construction, differentiating between “carrying” and
“transporting,” finds support in Connecticut case law. In 1992, the Connecticut
Appellate Court affirmed the use of a jury instruction interpreting section 29-35. In
doing so, the state court distinguished between “carrying” and “transporting.” It held
that, to prove an illegal “carry[ing]” of a pistol or revolver, “there does not have to be
10 proof that the defendant physically moved or transported the pistol over space while
carrying an unlicensed pistol.” State v. Hopes, 26 Conn. App. 367, 375, 602 A.2d 23, 27
(Conn. App. Ct. 1992). 2
More recently, Connecticut appellate courts have agreed, citing Hopes for the
proposition that unlawful “carrying” under section 29-35(a) does not necessitate any
kind of transport, and thereby confirming that “carrying” under section 29-35(a) should
be read as describing a broader range of conduct. See State v. Crespo, 145 Conn. App.
547, 573–74, 76 A.3d 664, 683 (Conn. App. Ct. 2013) (“Because there is . . . no
requirement that the pistol or revolver be moved from one place to another to prove
that it was carried, a defendant can be shown to have carried a pistol or revolver upon
his person . . . [if he] bore it upon his body for any period of time while maintaining
dominion or control over it.” (citation omitted)), aff’d, 115 A.3d 447 (Conn. 2015); State v.
Slade, 97 Conn. App. 404, 412–13, 905 A.2d 689, 695 (Conn. App. Ct. 2006) (“Because
§ 29-35(a) does not require proof that the defendant physically moved or transported
the revolver[,] the inferences tending to demonstrate that the defendant cocked the
revolver in the vehicle would show that the defendant carried the revolver in
contravention of § 29-35(a).” (citation omitted)). The Connecticut case law thus
reinforces the conclusion drawn from the text that a defendant may be prosecuted for
“carrying” an unloaded firearm on his person in public without being shown to be
“transporting” it from one location to another, and therefore that a person may “carry”
2In its discussion, the Hopes court used the term “asportation” apparently as interchangeable with the term “transportation.” Hopes, 26 Conn. App. at 375, 602 A.2d at 27 (“[A]sportation is not required to prove a violation of § 29-35 . . . .”). Black’s Law Dictionary defines “asportation” as “[t]he act of carrying away or removing (property or a person),”and advises that it is “a necessary element of larceny.” Black's Law Dictionary (11th ed. 2019). The Hopes court did not dwell on the distinction, however, instead stressing only that proof that the defendant “moved or transported” the pistol or revolver is not required. Hopes, 26 Conn. App. at 375, 602 A.2d at 27.
11 an unloaded antique firearm unlawfully, notwithstanding the “transportation”
exception.
The Connecticut Supreme Court appears to endorse this restricted view of the
exception as well. In a 2004 decision, it described the statute’s listed exceptions for
“transporting” as “narrowly circumscribed,” reinforcing our conclusion that the
exception for “transporting an antique pistol or revolver” should not be read to swallow
the generic prohibition. Lutters, 270 Conn. at 210, 853 A.2d at 441 (internal quotation
marks omitted). In Lutters, that court wrote:
These six limited [“transporting”] exceptions to § 29–35’s general prohibition of the possession of a handgun without a permit outside of a dwelling house or place of business represent the legislature’s recognition that, on occasion, it may be necessary to transport an unlicensed handgun from a dwelling house or place of business to another location for a specific and limited purpose, including, for example, the repair of the handgun. The narrowly circumscribed nature of these exceptions, however, is indicative of the overriding purpose of § 29–35(a), namely, to curtail the possession of unlicensed handguns in the public arena.
Id. The court distinguished “the possession of unlicensed handguns in the public
arena,” i.e., the “carrying” of pistols or revolvers (“handguns”), on the one hand, from
the act of “transport[ing] an unlicensed handgun from a dwelling house or place of
business to another location.” Id.
1999 revision of the Connecticut statute. Finally, the particulars of a significant
overhaul of section 29-35(a) made by the Connecticut General Assembly in 1999 also
confirm our reading of the text. Before 1999, the statute—then much abbreviated in
many respects—included a general exception to its prohibition on unpermitted carrying
in public for persons “carrying” an antique pistol or revolver, and (like the current
12 federal statute) placed no limitations on that exception with regard to transporting or
other conduct. 3
In 1999, however, the General Assembly revamped the statute. It replaced
“carrying” with “transporting” in its statement of the antique firearm exception and
added the limiting definition of “transporting”—restricting it to unloaded firearms—that
we have focused on and that has led to some confusion. 1999 Conn. Legis. Serv. P.A. 99-
212 (S.S.B. 1166). The 1999 law also changed “carrying” to “transporting” for the five
other “transportation” exceptions that the Lutters court recognized and called
“narrowly circumscribed.” Lutters, 270 Conn. at 210, 853 A.2d at 441. The 1999
amendment thus strongly suggests that the legislature intended to jettison the prior
blanket exception for carrying antique pistols or revolvers in favor of a narrower
version.
The suggestion is further strengthened by the state legislature’s enactment, in the
same overhaul bill, of a provision codified at section 29-33 regarding the “Sale, delivery
or transfer of pistols and revolvers.” That section disallows, among other acts, the
transfer of pistols or revolvers to certain classes of persons, such as felons. See generally
Conn. Gen. Stat. § 29-33; 1999 Conn. Legis. Serv. P.A. 99-212 (S.S.B. 1166). Subsection (f)
of that statute (as codified) expressly establishes a blanket exception for such
transactions insofar as they would otherwise apply to antiques: “The provisions of this
section shall not apply to antique pistols or revolvers.” Conn. Gen. Stat. § 29-33(f).
The 1999 enactment thus demonstrates a legislative intent to differentiate
between that conduct (sale, delivery, and transfer of pistols and revolvers) as to which it
3Before the 1999 amendment, the statute provided that it did not apply to “any person carrying an antique pistol or revolver, as defined in section 29-33.” 1988 Conn. Legis. Serv. P.A. 88-128, § 1.
13 allowed a wholesale exception with respect to antique firearms, and that conduct as to
which it did not (“carrying” unpermitted pistols and revolvers). In short, the
Connecticut General Assembly took a deliberate step in 1999 when it declined to adopt
in section 29-35(a) an across-the-board “carry” exception for antique pistols and
revolvers. We need not adopt precise definitions of the terms to conclude that the word
“carrying” as used in the Connecticut law encompasses a larger range of conduct than
does “transporting.”
C. Additional requirements for transportation by motor vehicle
The Connecticut statute also imposes locational requirements that must be met
for the exception regarding “transporting” pistols or revolvers in a motor vehicle to
apply. At the threshold, as discussed above, the statute’s several exceptions for
“transporting a pistol or revolver” do not reach conduct involving loaded pistols or
revolvers, whether antique or otherwise: as the section instructs, “‘transporting a pistol
or revolver’ means transporting a pistol or revolver that is unloaded.” Conn. Gen. Stat.
§ 29-35(a) (emphasis added). But in addition, the statute imposes other, independent
requirements (such as where in the vehicle the firearm must be placed) if the
unpermitted firearm is being “transported” in a motor vehicle:
“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.
14 Id. If those conditions are not met, the transportation is not exempt; rather, it amounts to
unpermitted carrying—including of an unloaded antique pistol or revolver—and may
be subject to prosecution.
* * *
In sum, section 29-35(a) generally criminalizes “carrying” an antique pistol or
revolver without a permit. It criminalizes all conduct involving a loaded antique pistol
or revolver. It criminalizes “transporting” antique pistols or revolvers that are unloaded
but not kept properly in a motor vehicle. Unlike the INA, Connecticut’s law does not
provide a general exception for conduct involving antique firearms. Connecticut
General Statutes section 29-35(a) is thus not a categorical match to the INA’s definition
of “firearms offense.”
We turn next to the agency’s contention that, even if its conclusion as to the
categorical match issue was incorrect, its ruling is saved by applying the “realistic
probability” test.
II. The “realistic probability” test
The categorical match inquiry is modified by the so-called “realistic probability”
test when the state statute of conviction is of “indeterminate” scope in its application
and so leaves open the possibility that it does not in practice match the federal statute;
otherwise said, that the federal and state statutes appear from their texts alone to be a
categorical match, but their enforcement may diverge in practice. See Hylton, 897 F.3d at
63 (internal quotation marks omitted). To demonstrate such a mismatch “requires a
realistic probability, not a theoretical possibility, that the State would apply its statute to
conduct that falls outside the generic definition of a crime.” Duenas-Alvarez, 549 U.S. at
193.
15 In Duenas-Alvarez, the Supreme Court confronted an apparent categorical match
between a California theft statute and the INA’s generic federal definition of theft. Id. at
189–90. Petitioner Duenas-Alvarez argued that, despite the apparent match, the scope of
criminal liability for aiding-and-abetting was broader as applied by California than
tolerated by federal law, and therefore the state statute could not be treated as a
categorical match to the federal statute and his state conviction could not serve as a
ground for his removal. Id. at 190–94.
The Supreme Court rejected his argument. It explained that, notwithstanding
some suggestions that state law and federal law might lack absolute equivalence in their
treatment of such liability, Duenas-Alvarez had failed to demonstrate a “realistic
probability” that the state in fact applied its law more broadly than the federal. To make
such a demonstration, the Court said, he had “at least [to] point to his own case or other
cases in which the state courts in fact did apply the statute in the special (nongeneric)
manner for which he argues.” Id. at 193. “[T]o find that a state statute creates a crime
outside the generic definition of a listed crime in a federal statute requires more than
the application of legal imagination to a state statute’s language,” it explained. Id.
The “realistic probability” test articulated in Duenas-Alvarez has no role to play in
the categorical analysis, however, when the state statute of conviction on its face reaches
beyond the generic federal definition. As we recently explained in Hylton v. Sessions, the
“realistic probability” test simply does not apply “when the statutory language itself,
rather than the application of legal imagination to that language, creates the realistic
probability that a state would apply the statute to conduct beyond the generic
definition.” Hylton, 897 F.3d at 63 (internal quotation marks omitted). Here, as we have
shown, because the plain language of the Connecticut statute allows prosecution for
“carrying” an antique pistol or revolver or for “transporting” a loaded antique pistol or
revolver, the mismatch with the federal statute is not created by “legal imagination”
16 applied in the context of an apparent match, but by the state’s statutory language itself.
As we wrote in Hylton, “When the state law is facially overbroad, we look no further.”
Id. at 65 (internal quotation marks and brackets omitted). 4
The BIA further wrote, in defense of its alternative holding, that “[t]his is not a
case where the text of the statute of conviction plainly criminalizes the carrying of
antique pistols and revolvers” and for that reason lies outside the federal statute’s
reach. CAR at 4 n.1. But as we have explained above, that conclusion was in error,
making its alternative holding misguided as well.
CONCLUSION
Section 29-35(a) of the Connecticut General Statutes is not a categorical match for
the generic federal firearms offense, 8 U.S.C. § 1227(a)(2)(C). Accordingly, we GRANT
the petition for review. We VACATE the order of removal, and we REMAND the cause
to the BIA with directions to terminate Williams’s removal proceedings.
4In support of its position, the BIA cites its own 2014 decision applying the “realistic probability” test as it rejected a challenge to removal that turned on the scope of a Utah firearms crime statute. CAR at 4 (citing Matter of Chairez-Castrejon, 26 I. & N. Dec. 349, 355–58 (B.I.A. 2014), vacated in part on other grounds, Matter of Chairez-Castrejon, 26 I. & N. Dec. 478 (B.I.A. 2015)). That 2014 BIA decision does not bind us, of course, but is inapposite in any event because the Utah statute there made no mention of antique firearms at all, possibly rendering it equivocal on the issue, while the Connecticut statute that we focus on here explicitly addresses some conduct involving antique firearms, as we have discussed. Nevertheless, we express no view on whether the BIA correctly applied the “realistic probability” test in Chairez-Casterjon.
17 APPENDIX
Conn. Gen. Stat. § 29-35 (2016)
Carrying of pistol or revolver without permit prohibited. Exceptions
(a) 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 issued as provided in section 29-28. The provisions of this
subsection shall not apply to the carrying of any pistol or revolver by any parole officer
or peace officer of this state, or any Department of Motor Vehicles inspector appointed
under section 14-8 and certified pursuant to section 7-294d, or parole officer or peace
officer of any other state while engaged in the pursuit of official duties, or federal
marshal or federal law enforcement agent, or to any member of the armed forces of the
United States, as defined in section 27-103, or of the state, as defined in section 27-2,
when on duty or going to or from duty, or to any member of any military organization
when on parade or when going to or from any place of assembly, or to the
transportation of pistols or revolvers as merchandise, or to any person transporting any
pistol or revolver while contained in the package in which it was originally wrapped at
the time of sale and while transporting the same from the place of sale to the
purchaser's residence or place of business, or to any person removing such person’s
household goods or effects from one place to another, or to any person transporting any
such pistol or revolver from such person’s place of residence or business to a place or
individual where or by whom such pistol or revolver is to be repaired or while
returning to such person’s place of residence or business after the same has been
repaired, or to any person transporting a pistol or revolver in or through the state for
the purpose of taking part in competitions, taking part in formal pistol or revolver
training, repairing such pistol or revolver or attending any meeting or exhibition of an
18 organized collectors’ group if such person is a bona fide resident of the United States
and is permitted to possess and carry a pistol or revolver in the state or subdivision of
the United States in which such person resides, or to any person transporting a pistol or
revolver to and from a testing range at the request of the issuing authority, or to any
person transporting an antique pistol or revolver, as defined in section 29-33. For the
purposes of this subsection, “formal pistol or revolver training” means pistol or
revolver training at a locally approved or permitted firing range or training facility, and
“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. Nothing
in this section shall be construed to prohibit the carrying of a pistol or revolver during
formal pistol or revolver training or repair.
(b) The holder of a permit issued pursuant to section 29-28 shall carry such permit upon
one's person while carrying such pistol or revolver. Such holder shall present his or her
permit upon the request of a law enforcement officer who has reasonable suspicion of a
crime for purposes of verification of the validity of the permit or identification of the
holder, provided such holder is carrying a pistol or revolver that is observed by such
law enforcement officer.
19 DENNIS JACOBS, Circuit Judge, concurring:
The opinion of the Court is sound, and I sign it without reservation. I do have
qualms, however.
The Immigration and Nationality Act (“INA”) provides for removal of any alien
“convicted under any law of . . . carrying . . . any weapon . . . which is a firearm or
destructive device (as defined in section 921(a) of Title 18) in violation of any law.”
8 U.S.C. § 1227(a)(2)(C). Robert Williams was convicted of carrying a pistol or revolver
without a permit, in violation of Connecticut General Statutes § 29-35(a). But he is not
going anywhere.
To determine whether Williams’s conviction is a removable offense, the Supreme
Court requires us to apply the categorical approach. Williams is removable only if a
conviction under Connecticut’s firearms statute necessarily fits within the INA’s
definition of a removable firearms offense. His actual conduct is irrelevant: we must
presume that his conviction rested upon the least of the acts criminalized by
Connecticut law. Applying this rule, the Court’s opinion compares the Connecticut
firearms statute with its federal analog and correctly determines that the match is
imperfect. Federal law contains a blanket exemption for antique guns while
Connecticut’s exemption only extends to unloaded antique guns that are being
transported.
To be clear, Williams was not a collector of antiques. The gun he possessed was
your ordinary workaday firearm. The result reached by the Court’s opinion is an
impediment to the suppression of illegal guns in Connecticut. And it prolongs for now
the presence of a man who roamed the streets drunk while waving a gun and firing it.
That cannot have been the intention of either the Connecticut General Assembly
or the United States Congress. But the rule requiring a categorical match between the unambiguous terms of the two statutes has the effect of frustrating both of them. The
result in the Court’s opinion is compelled, not endorsed. I would not try to justify it to
any sensible person.