Cite as 25 I&N Dec. 254 (BIA 2010) Interim Decision #3682
Matter of Carlos Ovidio MENDEZ-ORELLANA, Respondent
File A092 526 474 – Los Angeles, California
Decided June 9, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) In removal proceedings, the antique firearm exception in 18 U.S.C. § 921(a)(3) (2006)
is an affirmative defense that must be sufficiently raised by an alien charged under section
237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2006),
as an alien who has been convicted of an offense involving a firearm.
(2) Where the Department of Homeland Security has presented evidence that an alien has
been convicted of an offense involving a firearm, it has met its burden of presenting clear
and convincing evidence of deportability, and the burden then shifts to the respondent
to show that the weapon was, in fact, antique.
FOR RESPONDENT: Amanda Shooshtary, Esquire, Los Angeles, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: M. Kristina DeGuzman,
Assistant Chief Counsel
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
GRANT, Board Member:
In a decision dated November 18, 2008, an Immigration Judge terminated
the removal proceedings against the respondent. The Department
of Homeland Security (“DHS”) has appealed from that decision. The
respondent has submitted an opposition brief. The DHS’s appeal will
be sustained, and the record will be remanded to the Immigration Judge for
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Guatemala who was admitted
to the United States on December 1, 1990, as a lawful permanent resident. The
record reflects that the respondent was convicted on the basis of his guilty plea
on February 25, 1993, in the California Superior Court for Orange County,
of carrying a loaded firearm in a vehicle and carrying a concealed firearm
in a vehicle in violation of sections 12031(a) and 12025(a) of the CaliforniaCite as 25 I&N Dec. 254 (BIA 2010) Interim Decision #3682
Penal Code. The DHS initiated removal proceedings against the respondent,
charging that he is removable under section 237(a)(2)(C) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2006), as an alien convicted
of an offense involving a firearm, as defined in 18 U.S.C. § 921(a) (2006).
At his hearing before the Immigration Judge, the respondent argued that
he is not removable as charged because the Federal definition of a firearm
specifically excludes antique firearms. The Immigration Judge found that
he was unable to determine on the record of conviction submitted by the DHS
whether the firearm involved could be considered an antique. He therefore
concluded that the respondent’s removability had not been established and
terminated the proceedings.
The DHS argues on appeal that the Immigration Judge erred in terminating
the proceedings because the antique firearm exception is an affirmative
defense and the respondent submitted no evidence that the firearm used in the
commission of his crimes was an antique. In response, the respondent asserts
that the Immigration Judge properly terminated the proceedings because
although the DHS had several opportunities to present documentation
to establish whether the firearm was an antique, it failed to do so and therefore
failed to meet its burden of establishing removability. We review this question
of law de novo and disagree with the Immigration Judge’s conclusion.
8 C.F.R. § 1003.1(d)(3)(ii) (2010); see also Matter of A-S-B-, 24 I&N Dec.
493 (BIA 2008).
Section 237(a)(2)(C) of the Act provides for the removability of an alien
convicted of an offense involving a firearm, as that term is defined
in 18 U.S.C. § 921(a). According to 18 U.S.C. § 921(a)(3),
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.
It is well established in criminal proceedings that the “antique firearm”
exception in 18 U.S.C. § 921(a)(3) is an affirmative defense that must
be raised by a defendant by sufficient evidence to justify shifting the
burden to the Government to disprove its applicability. United States
v. Lawrence, 349 F.3d 109, 122 (3d Cir. 2003) (noting that every circuit court
of appeals that has considered the issue agreed that establishing that a weapon
is an antique firearm for purposes of 18 U.S.C. § 921 is an affirmativeCite as 25 I&N Dec. 254 (BIA 2010) Interim Decision #3682
defense); see also United States v. Washington, 17 F.3d 230, 232 (8th Cir.
1994); United States v. Smith, 981 F.2d 887, 892 (6th Cir. 1992); United States
v. Mayo, 705 F.2d 62, 74-76 (2d Cir. 1983) (holding that the antique firearm
exception did not create an additional element for the Government to prove
in order to win a conviction, which would make law enforcement more
difficult and thwart the congressional policy of controlling the illegal
firearms market). Simply raising the possibility that a firearm might qualify
as an antique is not sufficient to carry the burden of raising an affirmative
defense. United States v. Lawrence, 349 F.3d at 123.
We conclude that in removal proceedings, the antique firearm exception
in 18 U.S.C. § 921(a)(3) is also an affirmative defense that must be sufficiently
raised by an alien who has been charged under section 237(a)(2)(C) of the Act.
See Matter of P-F-, 20 I&N Dec. 661, 663 n.2 (BIA 1993) (citing United States
v. Laroche, 723 F.2d 1541 (11th Cir. 1984)). Where the DHS has presented
evidence that an alien has been convicted of an offense involving a firearm,
as that term is defined in 18 U.S.C. §§ 921(a)(3)(A)–(D), it has met its burden
of presenting clear and convincing evidence of deportability. The burden then
shifts to the respondent to show that the weapon was, in fact, antique. See
section 240(c)(3) of the Act, 8 U.S.C. § 1229a(c)(3) (2006).
In this case, the DHS submitted the respondent’s record of conviction,
including the felony complaint and his guilty plea, which indicate that he was
convicted of carrying a loaded “.25 caliber Colt semi-automatic pistol.” The
DHS therefore met its initial burden of demonstrating that the respondent’s
California convictions involved weapons that qualify as “firearms” under
18 U.S.C. § 921(a)(3). The respondent did not present any evidence
to establish that he was convicted of carrying an antique firearm.
We conclude that the Immigration Judge erred in terminating the
proceedings against the respondent. Accordingly, his decision will be vacated
and the record will be remanded for further proceedings to determine the
respondent’s removability. Although the respondent has not directly
represented that the weapon he possessed was, in fact, an antique under
Federal law, he will have an opportunity on remand to bring evidence to bear
on this question and to apply for any form of relief from removal for which
he may be eligible.
ORDER: The appeal of the Department of Homeland Security is sustained.
FURTHER ORDER: The decision of the Immigration Judge is vacated,
and the record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing decision and for the entry of a new decision.
Cite as 25 I&N Dec. 254 (BIA 2010) Interim Decision #3682