Jersey City, New Jersey – I often tell clients it is impossible to know how a judge, jury or panel of judges will react, think or decide a case. Even where it appears the law is on our side, the decision may go against us. Similarly, sometimes when it appears the law is against us, we prevail nonetheless. Even more confusing, sometimes with appeals, the outcome can flip flop from a win to a loss or from a loss to a win. A recent decision from the Fourth Circuit Court of Appeals illustrates this.

Some short legal background. A non-citizen is removable from the United States (amongst other penalties) when convicted of an aggravated felony. “Aggravated felony” is a term of art in immigration law. There are dozens of categories of aggravated felonies, including firearms offenses. When a person is convicted of a state crime, that person is only removable if the state crime is a categorical match to the federal crime. For instance, a state firearms conviction is only a conviction under immigration law if the state’s definition of firearm is the same as the federal definition of firearm. The most common discrepancy is antique firearms; antique firearms are excluded from the federal definition of firearms, but are included in many state definitions[1]. So, where the state definition obviously includes antique firearms in the definition, it is fair to expect a person convicted under that state statute would not be removable from the U.S. for a firearms aggravated felony.

In Gordon v. Barr, decided by the Fourth Circuit on July 8, 2020, Gordon was placed into removal proceedings based on a conviction under Virginia law for the discharge of “any firearm.” Because the Virginia definition of “any firearm” included items not included in the federal definition of firearm, the immigration judge terminated (meaning dismissed) the removal proceedings. The Department of  Homeland Security appealed, and here is where the unexpected outcome happens, the Board of Immigration Appeals sustained (meaning granted) the appeal and reinstated the removal proceedings. The BIA asserted Gordon failed to show the State of Virginia actually prosecuted for instances involving firearms not included in the federal definition. Thankfully, the Fourth Circuit reversed the BIA because the plain meaning of the word “any” necessarily includes antique firearms. Because the plain language of the statute itself made it overbroad (meaning included more types of firearms) than the federal definition, there was no need or allowance for any further analysis of whether Virginia actually prosecuted discharge of antique (or other non-qualifying) firearms.

This conclusion seems obvious. Had I discussed this with Mr. Gordon, I would have told him what I tell clients in a similar situation: I think we have a really strong argument; the law seems to be on our side, but it is impossible to know what any judge will decide. So prepare for the worst, but hope for the best. Mr. Gordon experienced a long roller coaster of legal and emotional ups and downs before getting to the end of his case. That ride is common, but it’s a lot more fun at Six Flags than in the courts.

[1] A less common, but perhaps more important example, especially in New Jersey, is bb guns and airsoft guns. The New Jersey definition of firearms includes these types of “guns,” but the federal definition does not.

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