966 F.3d 95
2d Cir.2020Background:
- Jervis Glenroy Jack and Ousmane Ag, both lawful permanent residents, were found removable by the BIA based on New York firearms convictions under N.Y. Penal Law §§ 265.03 and 265.11 and charged under INA removal provisions (8 U.S.C. § 1227(a)(2)(C); Jack also under § 1227(a)(2)(A)(iii) as an aggravated-felony firearm trafficking offense).
- Each moved to terminate removal proceedings; Immigration Judges denied the motions and the BIA affirmed, concluding the convictions supported removal.
- The convictions rest on New York’s criminalization of possession/sale of a “firearm”; New York’s statutory definition excludes an “antique firearm” only when it is unloaded, whereas the INA (via 18 U.S.C. § 921) excludes antique firearms regardless of loaded status.
- That textual difference means New York law can reach loaded antique firearms (criminal under NY) that the INA’s firearm definition expressly omits, creating a potential categorical mismatch.
- The BIA applied the realistic-probability test and required petitioners to prove that New York would in fact prosecute the out-of-federal-scope conduct; the Second Circuit held that test was inapplicable where the state statute facially reaches conduct beyond the federal definition.
- The Second Circuit granted the petitions, vacated the BIA’s decisions, and remanded with instructions to terminate removal proceedings for both Jack and Ag.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NY convictions categorically match INA firearm offenses given differing "antique firearm" definitions | Jack/Ag: NY statutes reach beyond INA because NY treats loaded antiques as firearms while INA excludes antiques regardless of loaded status | Govt/BIA: Convictions support removal; if mismatch exists, petitioners must show realistic probability NY prosecutes such out-of-scope conduct | Court: No categorical match; textual antique-firearm difference is fatal to removability |
| Whether the realistic-probability test excuses a facial statutory mismatch | Jack/Ag: Test is inapplicable where state statute on its face covers conduct outside federal definition | BIA: Petitioners failed to show realistic probability of prosecutions of out-of-scope conduct, so convictions are removable | Court: Realistic-probability test does not apply when the state statute facially reaches beyond the federal definition |
| Whether remand to the BIA was required before deciding the legal question | Jack/Ag: Court can resolve purely legal categorical question without remand | Govt: BIA should be allowed to apply controlling precedent in the first instance | Court: No remand necessary; question is legal and decided by the Court |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (clarifies categorical approach for matching state convictions to federal offenses)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (establishes the "realistic probability" test for state statutes of indeterminate scope)
- Hylton v. Sessions, 897 F.3d 57 (2d Cir. 2018) (applies categorical approach and realistic-probability analysis in INA removability context)
- Williams v. Barr, 960 F.3d 68 (2d Cir. 2020) (holds antique-firearm textual mismatch is fatal and limits the realistic-probability test)
- Genego v. Barr, 922 F.3d 499 (2d Cir. 2019) (explains remand unnecessary when the issue is purely legal)