Immigration authorities use the categorical approach to analyze whether a prior conviction comes within a removal ground. In 2013, the U.S. Supreme Court’s decisions in Moncrieffe v. Holder and Descamps v. United States clarified how to apply this test. These cases reaffirm that it is the elements of the offense that matter, not the defendant’s conduct in the particular case.

Under Moncrieffe, a factfinder will examine the minimum conduct to commit a criminal offense (as long as there is a “realistic probability” that this conduct actually would be prosecuted), and compare that to the federal or “generic” definition of the offense in the removal ground.  The firearm ground of deporability provides the generic definition in this instance.  The firearm ground of deportability references 18 U.S.C. § 921(a) to define the term “firearm.”  Significantly, this means that, in order for a state firearm offense to render a noncitizen deportable, the state statute must define firearm or destructive device no more broadly the federal definition does.

The federal definition, however, expressly excludes antique firearms. 18 U.S.C. §§ 921(a)(3), (16).  Any state statute that includes antique firearms for which the defendant faces a “realistic probability” of prosecution would be broader than Congress’ test and would take a state firearm conviction outside the ambit of firearm deportability. 

You may be thinking, “I’ve been a defender for 20 years and never had a client charged with possessing an antique firearm.”   The question is, has anyone in your state been prosecuted for this offense, as shown by published or unpublished opinions, or possibly by affidavits from defense or prosecution attorneys?  For example, California, Minnesota, and Maryland prosecute individuals for offenses involving antique firearms, which do not qualify as firearms under federal law.  Before Moncrieffe, the  Ninth Circuit expressly rejected the argument that a California firearm conviction was not a deportable firearm offense. That language in Moncrieffe supports it means that there is a far greater chance that federal courts will now accept this argument.   

You may now be thinking, “So what?” because the court papers will identify that the firearm was not an antique in your client’s case.   This is where the Descamps decision helps.  The Supreme Court held that a factfinder may look at the individual’s record of conviction (charging document, plea, and judgment) only if the statute is “divisible”; i.e., the statutory language defines more than one crime by setting out distinct elements, phrased in the alternative. A statute that makes criminal the “unlawful possession of a firearm” would not be divisible because it only defines one offense.   A statute that makes criminal the unlawful possession of a firearm or an antique firearm” might be divisible – but probably no firearm offense in the United States creates a distinct offense based on the age of the gun, which means that it is not legally relevant whether the record of conviction in a defendant’s individual case identifies the nature of the firearm. 

In order to determine whether this argument is available in your state, you would need to compare your state’s definition of firearm with the definition at 18 U.S.C. § 921.  If your state’s statute is broader than the federal definition, you would then need to find an example of the state prosecuting someone for a violation that would not be a conviction under federal law.  Although it would premature to assume this analysis will always succeed, at least one Immigration Judge has accepted the argument.  Because this argument is not settled law a practitioner should advise a client that a conviction under a firearm statute would now be a deportable offense regardless of whether the state statute includes antique firearms.  Nevertheless, if your client understands the risks, has no other plea options, and does not want to go to trial, then pleading to an indivisible firearm statute in a state that prosecutes antique firearm under the same statute as regular firearms may allow your client to remain in the United States without being deported. 

Another defense based upon the “generic” definition of firearm is to seek a plea to an offense that includes an air rifle or BB gun.  This is because the federal definition of firearm is (….explosive-powered).  Of course, a plea to a specific weapons that is not a firearm such as a knife, or to a broad statute that prohibits a “deadly weapon” with no further statutory definition, also may save the day for the client, by avoiding the generic definition of firearm.