Conroy Gordon v. William Barr
Not available in text (2020)
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Rule of Law:
When a state criminal statute's plain language is unambiguously broader than the definition of a corresponding federal offense, a conviction under that state statute does not qualify as a basis for removal, and the noncitizen is not required to show that the state has actually prosecuted the broader conduct.
Facts:
- Conroy Gordon, a citizen of Jamaica, was admitted to the United States in 1992 as a lawful permanent resident.
- In 2008, Gordon was convicted of a misdemeanor offense in Virginia for willfully discharging a firearm in a public place without causing bodily injury, in violation of Virginia Code § 18.2-280(A).
- The Virginia statute under which he was convicted applies to the discharge of 'any firearm' and does not contain an exception for antique firearms.
- Gordon was sentenced to ten days' imprisonment, which was served on weekends.
Procedural Posture:
- The Department of Homeland Security issued Conroy Gordon a notice to appear, initiating removal proceedings.
- Gordon filed a motion to terminate the proceedings before an Immigration Judge (IJ).
- The IJ granted Gordon's motion, concluding the Virginia statute was broader than the federal firearm offense.
- The government appealed the IJ's decision to the Board of Immigration Appeals (BIA).
- The BIA reversed the IJ's decision, holding that Gordon had failed to show a 'realistic probability' that Virginia would prosecute for antique firearm use, and entered an order of removal.
- Gordon filed a petition for review of the BIA's decision with the U.S. Court of Appeals for the Fourth Circuit.
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Issue:
Does a conviction under Virginia Code § 18.2-280(A), which prohibits the discharge of 'any firearm' without excluding antique firearms, qualify as a federal 'firearm offense' for removal purposes under the Immigration and Nationality Act, which explicitly excludes antique firearms from its definition?
Opinions:
Majority - Keenan
No. Gordon's conviction under Virginia Code § 18.2-280(A) does not qualify as a federal 'firearm offense' because the state statute is categorically broader than the federal definition. The court applied the categorical approach, comparing the state statute of conviction to the federal removal statute. The federal definition of a 'firearm,' incorporated by the Immigration and Nationality Act, explicitly excludes 'antique firearms.' In contrast, the Virginia statute prohibits the discharge of 'any firearm' and contains no such exclusion. The court reasoned that the plain language 'any firearm' is unambiguously broad. This interpretation is supported by Virginia court decisions interpreting 'any firearm' broadly and by the Virginia legislature's practice of explicitly excluding antique firearms in other statutes when it intends to do so. Because the Virginia statute sweeps more broadly by criminalizing conduct (the discharge of an antique firearm) that the federal definition does not, there is no categorical match. The court rejected the government's argument that Gordon had to show a 'realistic probability' that Virginia actually prosecutes cases involving antique firearms under this statute. Citing the Supreme Court's decision in Mathis v. United States, the court held that when a state statute is overbroad on its face based on its plain text, the categorical analysis is complete, and the noncitizen does not bear the burden of finding an actual prosecution for the overbroad conduct.
Analysis:
This decision significantly clarifies the application of the categorical approach in the Fourth Circuit, particularly concerning the 'realistic probability' test from the Supreme Court's dictum in Moncrieffe. The court establishes that when a state statute's text is unambiguously broader than its federal counterpart, the analysis ends there—the statute is not a categorical match, and the burden does not shift to the noncitizen to prove that the state actually prosecutes the overbroad conduct. This holding strengthens protections for noncitizens in removal proceedings by preventing the government from using state convictions where the statutory language does not perfectly align with federal definitions, regardless of how the state law is practically enforced. It creates a bright-line rule based on statutory text, simplifying the categorical inquiry in cases of clear facial overbreadth.
