BIA Holds That A Conviction For Unlawfully Selling Or Otherwise Disposing Of A Firearm Or Ammunition In Violation Of 18 U.S.C. §922(d) Does Not Render One Removable Under INA § 237(a)(2)(c) Because §922(d) Is Categorically Overbroad And Indivisible Relative To The Definition Of A Firearms Offensive.
On July 28, 2022, the Board of Immigration Appeals (BIA or Board) sustained an appeal of a decision by the Immigration Judge (IJ) denying the Respondent’s application for cancellation of removal under INA §240A(a) and finding him removable. DHS opposed the appeal and the BIA requested supplemental briefing; both parties submitted briefs. Proceedings were ordered terminated.
Respondent contested the IJ’s conclusion that his conviction for unlawfully selling or otherwise disposing of a firearm or ammunition per 18 U.S.C.922(d) rendered him removable under INA §237(a)(2)(C) for having been convicted of a firearms offensive. The Board initially noted that DHS has the burden of establishing that one is removable as charged and that whether Respondent had been convicted of a firearms offense was a question of law it reviewed de novo. The decision then quoted §237(a)(2)(C), explaining that under the INA a noncitizen who “is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring” to understand such acts in connection with “any weapon, part, or accessory which is a firearm or destructive device” becomes removable.
Initially, stated the BIA, while this section of the INA “encompasses a wide variety of conduct,” the statute does not hold that any type of firearms offense is a basis for removal. To determine whether a particular conviction constitutes a firearm offense under 237(a)(2)(C), the categorical approach must be applied; this test focuses on the elements of the offense and “the minimum conduct that has a realistic probability of being prosecuted under those elements,” rather than on a respondent’s actual conduct. Applying the categorical approach, the Board concluded that Respondent’s statute of conviction was overbroad relative to a “firearms offense” under 237(a)(2)(C). First, the criminal law addressed conduct concerning either a “firearm” or “ammunition”, but an offense under §237(a)(2)(c) “must involve a ‘firearm’”; “ammunition” did not fall within this definition.
Second, the statute encompassed both “selling” and “otherwise disposing of” a firearm or ammunition; “otherwise dispose of” has been defined as “to transfer a firearm [or ammunition] so that the transferee acquires possession of the firearm,” including through “gratuitous transfers” that do not involve compensation. Yet, 237(a)(2)(C) does not reach gratuitous transfers without compensation, only the purchase, sale, offer for sale, exchange, use, owning, possession, or carrying of a firearm. Because an “exchange” does not include a gratuitous transfer, the opinion concluded that the phrase “sell or otherwise dispose of” in §922(d) is overbroad with respect to the acts constituting a firearm offense under 237(a)(2)(C). The DHS conceded that §922(d) is overbroad in this regard.
Further, because the statute is overbroad, the BIA had to determine whether it is divisible. A statute is divisible if a) it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of “elements,” more than one combination of which could support a conviction and b) some (but not all) of those listed offenses or combinations of disjunctive elements are a categorical match to the relevant generic standard. Put simply, a statute is divisible “when it contains a single crime that can be completed by different statutory means.” After defining and discussing elements and means, the Board next looked to determine whether a particular statute contained crimes defined by distinct elements.
In such a scenario, the adjudicator must look to a variety of factors, including the exact wording of the statute, whether these are different penalties for different violations, and issues of double jeopardy. The decision then noted that 18 U.S.C. §922(d) “does not specifically list multiple discrete offenses as enumerated alternatives”, although the statute does refer to “any firearm or ammunition” and “sell or otherwise dispose of” with disjunctive phrasing. However, this was not considered dispositive but merely triggering of an inquiry “into whether the alternatively phrased items are means or elements.” The opinion then mentioned that DHS contends the BIA should examine whether the statute raises issues of double jeopardy, specifically asserting that the fact that each firearm and each grouping of ammunition can be charged separately shows that they are not “means,” but “elements” under the Double Jeopardy Clause.
However, the Board pushed back, stating that in determining divisibility based on the Double Jeopardy prohibition, it looks to “whether a single act involving a firearm and ammunition can sustain multiple convictions”, as this establishes that the elements of the offense involving a firearm are different from the elements of the offense involving ammunition. Although the decision admitted it could find no controlling case specifically addressing double jeopardy with respect to 922(d), it noted that §922(g) contained the same reference to “any firearm or ammunition”.
Further, 922(g) had been parsed by the Fifth Circuit Court of Appeals, the controlling circuit here, in terms of double jeopardy; the court had held, in fact, that multiple convictions and sentences under 922(g) for possession of a firearm and ammunition during a single act violates Double Jeopardy. The Fifth Circuit’s analysis thus supported the BIA’s conclusion that 922(d) contains alternative “means” rather than alternative “elements”.
Lastly, DHS conceded that 922(d) was not divisible with respect to the phrase “sell or otherwise dispose of,” but nonetheless argued that under Pereida v. Wilkinson, 141 S.CT. 754 (2021), the Board was permitted to refer to Respondent’s conviction documents to determine if he had been convicted of acts that would constitute a firearms offense. The Appellate Immigration Judges were unpersuaded, stating that Pereida involved a divisible statute and concluded that when the modified categorical approach is applicable and when a respondent is applying for relief from removal, he or she bears the burden of presenting evidence establishing that he or she was convicted under one of the subsections of the divisible statute that did not constitute a disqualifying crime. Here, DHS bore the burden of establishing removability under the INA. Therefore, while the BIA could look to Respondent’s conviction documents to determine the statute of conviction, it could not look to the facts of his actual crime to determine whether his conviction involved the sale of a firearm.
§922(d) was thus held to be overbroad relative to §237(a)(2)(C) and indivisible with respect to whether a violation of the statute involved a “firearm” or “ammunition” or “selling” or “otherwise disposing of” a firearm or ammunition. DHS therefore did not meet its burden of proving Respondent had been convicted of a firearms offense under 237(a)(2)(C). Because respondent was not removable as charged, the appeal was sustained and proceedings terminated. Matter of Ortega-Quezada, 28 I&N Dec.598 (BIA 2022).
