ROBERT JUNIOR WILLIAMS, Petitioner, –v.– WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.
Docket No. 18-2535
In the United States Court of Appeals For the Second Circuit
August Term, 2019 (Submitted: March 27, 2020 Decided: May 27, 2020)
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
GRANTED, VACATED, AND REMANDED.
Judge Jacobs concurs in a separate opinion.
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
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.
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
Based on his conviction under
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
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.
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.
3. The Connecticut statute: Connecticut General Statutes § 29-35(a)
In addition to stating the general prohibition,
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
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.”
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 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
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
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.
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 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.
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
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.
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.
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
More recently, Connecticut appellate courts have agreed, citing Hopes for the proposition that unlawful “carrying” under
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
1999 revision of the Connecticut statute. Finally, the particulars of a significant overhaul of
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
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 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
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.”
“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. 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,
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.
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
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” 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
APPENDIX
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
(b) The holder of a permit issued pursuant to
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.”
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.