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The Board of Immigration Appeals applied the Supreme Court's decisions in Descamps and Moncrieffe to find that the respondent's felony conviction under section 76-10-508.1 of the Utah Code for discharge of a firearm was not an aggravated felony crime of violence, but was a deportable firearms offense.

Section 76-10-508.1(1) has three subsections and it was not clear which the respondent was convicted of.  The first, subsection (a), penalizes one who "discharges a firearm in the direction of any person or persons,  knowing or having reason to believe that any person may be endangered by the discharge of the firearm."  This does not require any particular mental state by the person who discharges the firearm, which means under the Utah Code that it may be done with intent, knowledge, or recklessness.

The Supreme Court held in Leocal that the mental state of recklessness does not satisfy the federal definition of a crime of violence, so the Board held that a violation of section 76-10-508.1(1)(a) is not necessarily an aggravated felony crime of violence.   Further, the Board held it could not find the respondent was convicted of an aggravated felony under the modified categorical approach.  It determined it could not use the modified categorical approach because the mental states for subsection (a) (intentionally, knowingly, or recklessly) are not divisible because they are not elements of the offense that a jury must unanimously agree upon.  In other words, a jury returning a guilty verdict could do so where some members of the jury believe the defendant acted intentionally, while others believe he acted recklessly.  Since the offense does not necessarily constitute a crime of violence and it is not divisible, no conviction for section 76-10-508.1(1)(a) would be an aggravated felony crime of violence.

The Board nonetheless found that Chairez-Castrejon was convicted of a firearms offense because it rejected his argument on the antique firearm exception.  The federal definition of a firearm excludes certain antique firearms, while the respondent argued that Utah law did not.  The Board noted that there was no specific exception for antique firearms under Utah law, but also found that the respondent had not shown Utah actually prosecutes offenses involving antique firearms.  In Moncrieffe, the Supreme Court held that an alien who invokes this “antique firearm” argument in order to defeat an aggravated felony charge “would have to demonstrate
that the State actually prosecutes the relevant offense in cases involving antique firearms.”  The respondent apparently could not show that here (California, on the other hand, does prosecute cases involving antique firearms).  The Board therefore found Chairez-Castrejon deportable, although it remanded for consideration of his cancellation of removal claim because it found his conviction was not an aggravated felony.

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In this illegal reentry decision, the Ninth Circuit held that firearms convictions under state statues that encompass both "antique" and non-antique firearms do not satisfy the federal ground of deportability for conviction of a firearms offense. The defendant here had been removed for conviction under such a statute, so the court found the removal order invalid and reversed the conviction.

The federal definition referenced by the firearms ground of deportability explicitly excludes antique firearms, while former section 12021(c)(1) of the California Penal Code, does not. In other words, there is no complete match between the two definitions and a conviction for the California offense should not categorically trigger deportability. The Ninth Circuit previously had resisted this logic, primarily because the antique firearms exception is an affirmative defense in a federal prosecution. In Moncrieffe, the Supreme Court found, albeit in dicta, that whether it is an affirmative defense or not does not matter. What matters is the congruence between the definitions. An offense meets a federal definition only if all of the conduct penalized by it meets the definition, including the least culpable conduct that there is a "realistic probability" of the state prosecuting. Aguilar-Rios cited cases showing California regularly prosecuted offenses involving antique firearms under PC 12021(c)(1), so the least culpable conduct for a conviction clearly did not meet the federal firearms definition.

Moreover, as in the marijuana statute at issue in Moncrieffe, former California PC 12021(c)(1) was not divisible into alternative, separately defined offenses involving antique or not-antique firearms. Thus, the court held it could not examine the record of conviction to try to determine whether Aguilera-Rios's offense actually involved an antique firearm.

Although this decision concerned a firearms statute that existed before the Deadly Weapons Recodification Act of 2010 went into effect on January 1, 2012, it should apply equally to offenses under the reorganized statute that do not distinguish between antique and non-antique firearms. This would include current sections 25400(a), 27500, 29800, and 33215 of the Penal code, according to the ILRC.

Finally, I should point out that the panel's decision confusingly states Aguilera-Rios's "conviction is not a categorical match for the federal aggravated felony" definition. This apparently is an error, since the recited facts indicate Aguilera-Rios was only found deportable for conviction of a firearms offense, 8 U.S.C. 1227(a)(2)(C), not a firearms aggravated felony. This error is not significant, though, since both reference the same federal definition of a firearm.

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The Second Circuit remanded the removal order in Lanferman to the Board for an opinion on whether (A) a criminal offense must have discrete subsections or clauses to be divisible (thus triggering the modified categorical approach to determining removability or ineligibility for relief from removal) or (B) a criminal offense is divisible regardless of the structure if--based on the elements of the offense--some but not all violations give rise to removability or ineligibility for relief. The Board held that the second broader approach applied.

The decision is entirely academic, though, because the New York menacing statute at issue, N.Y. Penal Law § 120.14(1), is divisible under either approach as to whether it is a deportable firearms offense pursuant to INA 237(a)(2)(C). Section 120.14(1) provides that a person is guilty of menacing if he or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying any one of a series of deadly weapons or instruments, including but not limited to firearms. Since the various weapons are specifically identified in the statute and separated by commas, the offense has discrete clauses that would seem to satisfy the narrower approach. It thus is unclear why the Second Circuit thought a remand was necessary.

Most significant for those of us practicing in the Ninth Circuit is the Board's vague and contradictory endorsement of the Ninth's decision in Aguila Montes de Oca. Lanferman's holding clearly requires that divisibility be determined "based on the elements of the offense." However, the Board also cites Aguila's "necessarily found" analysis to support its holding. The "necessarily found" analysis permits the immigration authorities to use non-elements in determining removability under the modified categorical approach. Thus, per Aguila, a menacing statute that did not have use of a firearm as an element would still constitute a removable offense if a firearm necessarily was used to commit the menacing. If the Board wanted to endorse this approach, though, why does it seem to consciously use the term "element" throughout the Lanferman opinion?? I welcome your thoughts.

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The Ninth Circuit held here that a conviction for California Penal Code § 12025(a) categorically qualifies as a deportable firearms offense under INA 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).

Section 12025(a) penalizes offenses related to carrying a concealed firearm upon the person or in a vehicle or causing a weapon to be concealed in a vehicle. The state courts have interpreted this broadly, holding, “[I]t is theoretically possible for a person to cause to be concealed a firearm that is not in his or her possession, custody, or control, such as by conduct that conceals from view a firearm that is in the possession and control of another person.” People v. Padilla, 98 Cal. App. 4th 127, 138 (2002).

The Ninth Circuit held that even this constructive possession, however, amounted to unlawful "possession" of a firearm for purposes of the grounds of deportability. The court noted the laundry list of offenses covered by the firearms deportability statute and opined that it evidenced a congressional intent to construe possession broadly. Judge Rymer dissented from this holding.

The court also addressed the antique firearms exception to the deportability statute, since California law does not contain the same exception. It held that the antique firearms exception is an affirmative defense, which need not be considered under the categorical analysis--at least where the noncitizen does not assert that it applies.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/08-74371.pdf

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