965 F.3d 252
4th Cir.2020Background
- Conroy Gordon, a lawful permanent resident admitted in 1992, was convicted in Virginia (2008) of willfully discharging "any firearm" in a public place without bodily injury (Va. Code § 18.2-280(A)).
- DHS charged Gordon removable under the INA's firearm-offense ground, 8 U.S.C. § 1227(a)(2)(C); the federal definition of "firearm" (18 U.S.C. § 921(a)(3)) expressly excludes "antique firearms."
- An IJ granted Gordon's motion to terminate removal proceedings, reasoning the Virginia statute criminalizes a broader class of conduct than the INA because it lacks an antique-firearm exception.
- The BIA reversed, relying on Moncrieffe dictum and holding Gordon needed to show a realistic probability that Virginia prosecutes § 18.2-280(A) using antique firearms (i.e., identify an actual such prosecution).
- The Fourth Circuit reviewed de novo, found the plain text of § 18.2-280(A), Virginia appellate decisions (notably Armstrong), and subsequent Virginia statutory amendments demonstrate the Commonwealth treats "any firearm" broadly (including antiques), so the state offense is overbroad compared to the INA exclusion.
- The court vacated the BIA’s removal order, granted the petition for review, remanded with directions to facilitate Gordon’s return.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gordon's VA § 18.2-280(A) misdemeanor is a removable "firearm offense" under INA § 1227(a)(2)(C) | Va. statute bans discharge of "any firearm," which (by text and VA case law) includes antique firearms, so it sweeps more broadly than the INA (which excludes antiques) | Because VA statute lacks an antique exception, Moncrieffe requires Gordon to show a realistic probability the state actually prosecutes antique-firearm cases; he failed to do so | Held for Gordon: the VA statute's plain text and state authorities show it covers antiques; it is broader than the INA definition, so the conviction is not a removable firearm offense |
| Whether Moncrieffe’s "realistic probability"/"find a case" requirement applies when the state statute is unambiguously broader on its face | Gordon: no — when statutory language and state precedent unambiguously show overbreadth, petitioner need not identify an actual prosecution for the overbroad conduct | Government: Moncrieffe requires a showing of actual prosecutions involving antiques to defeat categorical match | Held for Gordon: Moncrieffe dictum doesn’t apply where the state statute’s text and state-court interpretations unambiguously demonstrate overbreadth (Mathis and other authorities support this) |
| Whether court should order facilitation of Gordon's return after prevailing on review | Gordon: ICE policy directs facilitation of return for those who prevail on appellate review; relief is appropriate | Government: (no persuasive contrary authority presented) | Held: Court directed government to follow existing ICE policy and facilitate Gordon’s return |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (discusses "realistic probability" inquiry in categorical analysis)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (categorical approach resolves cases where state statute is textually broader than federal predicate)
- Taylor v. United States, 495 U.S. 575 (1990) (establishes categorical approach for comparing convictions to federal offenses)
- Descamps v. United States, 570 U.S. 254 (2013) (explains categorical approach and doctrine when state statute "sweeps more broadly")
- Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014) (Fourth Circuit precedent on de novo review and burden of proof for removability)
- Castillo v. Holder, 776 F.3d 262 (4th Cir. 2015) (directs reliance on state appellate interpretations in categorical analysis)
- Armstrong v. Commonwealth, 562 S.E.2d 139 (Va. 2002) (Virginia Supreme Court interpreted "any firearm" broadly, including inoperable weapons)
- Hylton v. Sessions, 897 F.3d 57 (2d Cir. 2018) (state statute text can obviate need for a "realistic probability" showing)
- Chavez-Solis v. Lynch, 803 F.3d 1004 (9th Cir. 2015) (when state statute is textually broader, petitioner need not point to actual prosecutions)