960 F.3d 68
2d Cir.2020Background:
- Robert Junior Williams, a lawful permanent resident, was convicted in Connecticut (2016) for carrying a pistol/revolver without a permit (Conn. Gen. Stat. §29-35(a)).
- DHS charged Williams as removable under the INA for a “firearms offense” (8 U.S.C. §1227(a)(2)(C)); IJ and BIA agreed and ordered removal.
- Connecticut §29-35(a) generally prohibits public carrying without a permit but contains limited "transporting" exceptions for antique pistols/revolvers that require the firearm be unloaded and impose vehicle-placement rules.
- The INA’s firearms definition (18 U.S.C. §921(a)(3)) excludes all “antique firearms” (defined in §921(a)(16)) without regard to whether they are loaded.
- The BIA treated the state and federal antique exceptions as coextensive and alternatively applied the realistic-probability test to reject Williams’s challenge.
- The Second Circuit held the Connecticut statute is facially broader than the INA (criminalizes loaded-antiques and non-transport "carrying"), so the conviction is not a categorical match; realistic-probability review was inapplicable. Court granted petition, vacated removal, and remanded to terminate proceedings.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Conn. §29-35(a) is a categorical match to INA §1227(a)(2)(C) given antique exceptions | Williams: CT’s exception covers only unloaded antiques during specified "transporting"; CT still criminalizes carrying loaded antiques or carrying (not transporting) antiques → not a categorical match | Government/BIA: The CT exception for transporting antiques effectively exempts carrying antiques too; statutes are equivalent → categorical match | Held: Not a match. CT law is broader (criminalizes loaded antiques and non-transport carrying); conviction cannot serve as INA predicate |
| Whether the distinction between "carrying" and "transporting" changes categorical analysis | Williams: CT distinguishes the terms; "carrying" covers broader conduct (no movement required); transporting exceptions are narrowly circumscribed and conditional | Government: The distinction is implausible; transporting implies carrying so exception should apply to carrying | Held: Court reads CT text and state precedent to treat "carrying" broader than "transporting;" BIA erred to conflate them |
| Whether the "realistic probability" test saves removal despite facial overbreadth | Williams: Test inapplicable where state statute is facially broader; mismatch appears in statutory text itself | Government/BIA: Even if facially broader, Williams failed to show a realistic probability that CT would prosecute nongeneric conduct; applied the test and denied relief | Held: Realistic-probability test does not apply when statutory language is facially overbroad (per Hylton); agency’s alternative holding was incorrect |
Key Cases Cited:
- Hylton v. Sessions, 897 F.3d 58 (2d Cir. 2018) (realistic-probability test does not apply when state statute is facially overbroad)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach: compare statutory elements/text, not facts of conviction)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (articulated "realistic probability" standard to show state law applied nongenerically)
- Lutters v. State, 270 Conn. 198 (Conn. 2004) (Connecticut Supreme Court describing §29-35 transporting exceptions as "narrowly circumscribed")
- Pierre v. Holder, 588 F.3d 767 (2d Cir. 2009) (de novo review of categorical-match legal question)
- Pascual v. Holder, 707 F.3d 403 (2d Cir. 2013) (only minimum conduct necessary for conviction matters in categorical analysis)
- United States v. Mason, 692 F.3d 178 (2d Cir. 2012) (different word choice within same statutory context suggests different meanings)
- State v. Hopes, 26 Conn. App. 367 (Conn. App. 1992) (Connecticut appellate court distinguishing "carrying" from "transporting" under §29-35)