     18-842-ag
     Jack v. Barr
 1                          UNITED STATES COURT OF APPEALS
 2                              FOR THE SECOND CIRCUIT
 3
 4                                      August Term, 2019
 5
 6                  (Submitted: April 16, 2020             Decided: July 16, 2020)
 7
 8                                    Docket Nos. 18-842-ag;
 9                                                18-1479-ag
10
11                           _____________________________________
12
13                  JERVIS GLENROY JACK, AKA JACK BROWN, AKA JERVIS
14                             GLENROY, AKA JERVIS JACK,
15
16                                           Petitioner,
17
18                                               v.
19
20              WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,
21
22                                          Respondent.
23
24                           _____________________________________
25
26                                       OUSMANE AG,
27
28                                           Petitioner,
29
30                                               v.
31
32              WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,
33
34                                          Respondent.
35
36                           _____________________________________
 1   Before:
 2
 3         LIVINGSTON, LOHIER, and NARDINI, Circuit Judges.
 4
 5          In these tandem cases, Jervis Glenroy Jack and Ousmane Ag each petition
 6   for review of decisions of the Board of Immigration Appeals (BIA) ordering them
 7   removed based on their New York firearms convictions. See 8 U.S.C.
 8   § 1227(a)(2)(A)(iii), (a)(2)(C). We principally conclude that the statutes of
 9   conviction, sections 265.03 and 265.11 of the New York Penal Law, criminalize
10   conduct involving “antique firearms” that the relevant firearms offense
11   definitions in the Immigration and Nationality Act do not. This categorical
12   mismatch precludes the petitioners’ removal on the basis of their state
13   convictions. We therefore GRANT the petitions, VACATE the decisions of the
14   BIA, and REMAND both causes to the agency with instructions to terminate
15   removal proceedings.
16
17                           Nicholas J. Phillips, Joseph Moravec, Prisoners’ Legal
18                           Services of New York, Buffalo, NY; Alan E. Schoenfeld,
19                           Wilmer Cutler Pickering Hale and Dorr LLP, New York,
20                           NY, for Jervis Glenroy Jack, Petitioner in No. 18-842-ag.
21
22                           Stephanie Lopez, Neighborhood Defender Service of
23                           Harlem, New York, NY; Alan E. Schoenfeld, Andrew
24                           Sokol, Beezly J. Kiernan, Wilmer Cutler Pickering Hale
25                           and Dorr LLP, New York, NY, for Ousmane Ag, Petitioner
26                           in No. 18-1479-ag.
27
28                           Dana M. Camilleri, Trial Attorney, Anthony P. Nicastro,
29                           Assistant Director, Office of Immigration Litigation, for
30                           Joseph H. Hunt, Assistant Attorney General, Civil
31                           Division, United States Department of Justice,
32                           Washington, D.C., for William P. Barr, United States
33                           Attorney General, Respondent in No. 18-842-ag.
34
35                           Allison Frayer, Trial Attorney, Melissa Neiman-Kelting,
36                           Assistant Director, Office of Immigration Litigation, for

                                            2
 1                             Joseph H. Hunt, Assistant Attorney General, Civil
 2                             Division, United States Department of Justice,
 3                             Washington, D.C., for William P. Barr, United States
 4                             Attorney General, Respondent in No. 18-1479-ag.
 5
 6   PER CURIAM:

 7         In these tandem cases, Jervis Glenroy Jack and Ousmane Ag each petition

 8   for review of a decision of the Board of Immigration Appeals (BIA) finding them

 9   removable for having been convicted of a firearms offense, 8 U.S.C.

10   § 1227(a)(2)(C), and also, in Jack’s case, for having been convicted of a firearms

11   trafficking aggravated felony, 8 U.S.C. §§ 1101(a)(43)(C), 1227(a)(2)(A)(iii). On

12   appeal, both Jack and Ag argue that the BIA should have granted their motions

13   to terminate the removal proceedings against them because the New York

14   statutes of conviction apply to conduct that is not a removable offense under

15   federal law. We agree. For the reasons that follow, we grant the petitions, vacate

16   the BIA’s decisions, and remand the causes to the agency with instructions to

17   terminate removal proceedings against both Jack and Ag.

18                                    BACKGROUND

19         Although these tandem cases come to us in slightly different procedural

20   postures, they present the same material facts and legal issues. In 2017 Jervis

21   Glenroy Jack, a lawful permanent resident of the United States, was charged as

                                              3
 1   removable under two provisions of the Immigration and Nationality Act (INA), 8

 2   U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1227(a)(2)(C), for having been convicted

 3   of a firearms offense and a firearms trafficking aggravated felony. The basis of

 4   the charges was Jack’s conviction in state court of criminal sale of a firearm in the

 5   third degree in violation of New York Penal Law § 265.11(2), and attempted

 6   criminal possession of a weapon in the second degree in violation of New York

 7   Penal Law § 265.03. In 2016 Ousmane Ag, also a lawful permanent resident of

 8   the United States, was charged as removable under 8 U.S.C. § 1227(a)(2)(C) for

 9   having been convicted of a firearms offense. In Ag’s case the specific offense of

10   conviction was criminal possession of a weapon in the second degree, in

11   violation of New York Penal Law § 265.03(3).1

12          Both Jack and Ag moved to terminate removal proceedings, arguing that

13   their New York firearms convictions did not qualify as INA offenses under §

14   1227(a)(2)(C) and, in Jack’s case, § 1227(a)(2)(A)(iii). Immigration Judges (IJs)

15   denied the motions to terminate in both cases after concluding that Jack and Ag




     1
       Ag was also initially charged as removable under 8 U.S.C. § 1227(a)(2)(A)(i) and (ii) for
     having been convicted of a crime involving moral turpitude based on a separate 2008
     conviction. The Government later withdrew the charge under § 1227(a)(2)(A)(ii), and
     the IJ did not sustain the charge under § 1227(a)(2)(A)(i). Those decisions are not at
     issue in this appeal.
                                                  4
 1   had failed to show a realistic probability that New York would prosecute these

 2   firearms offenses in cases that extended beyond the federal definition of

 3   removable offenses. The BIA affirmed. In re Jervis Glenroy Jack, No. A055 568

 4   782 (B.I.A. Feb. 26, 2018), aff’g No. A055 568 782 (Immig. Ct. Fishkill Oct. 4, 2017);

 5   In re Ousmane Ag, No. A099 120 565 (B.I.A. Apr. 19, 2018), aff’g A099 120 565

 6   (Immig. Ct. N.Y.C. Nov. 8, 2017), and A099 120 565 (Immig. Ct. N.Y.C. May 11,

 7   2017). 2 Jack and Ag timely petitioned for review.

 8         In the meantime, in Hylton v. Sessions, 897 F.3d 57 (2d Cir. 2018), we

 9   addressed the categorical approach and the realistic probability test in

10   determining whether state convictions qualify as removable offenses under the

11   INA. The Government then moved to remand both pending cases to allow the

12   BIA to apply Hylton in the first instance. Although we denied the motions to

13   remand, we held resolution of these petitions pending the decision in Williams v.

14   Barr, 960 F.3d 68 (2d Cir. 2020), which considered whether a Connecticut

15   firearms statute qualified as a firearms offense under the INA.




     2
      The agency also denied Ag’s applications for asylum, cancellation of removal,
     withholding of removal, and relief under the Convention Against Torture. Ag does not
     challenge denial of those forms of relief.
                                               5
 1         Williams dictates the outcome in each of these cases, and we therefore

 2   grant the petitions and vacate the BIA’s decisions.

 3                                      DISCUSSION

 4         1. The Categorical Approach

 5         We review de novo the legal question whether a state conviction is a

 6   categorical match to the ground of removability asserted by the agency under the

 7   INA. 8 U.S.C. § 1252(a)(2)(C)–(D); see Hylton, 897 F.3d at 60. Even now, the

 8   Government insists that the BIA should be permitted to apply Hylton in the first

 9   instance. But remand is unnecessary where, as here, the only question before us

10   “is one of law, well within this Court’s purview.” Genego v. Barr, 922 F.3d 499,

11   502 (2d Cir. 2019).

12         Under the now-familiar categorical approach, a state conviction qualifies

13   as a removable offense if “the state statute defining the crime of conviction

14   categorically fits within the . . . federal definition.” Moncrieffe v. Holder, 569

15   U.S. 184, 190 (2013) (quotation marks omitted). The approach requires that we

16   “identify the minimum criminal conduct necessary for conviction under a

17   particular statute by looking only to the statutory definitions—i.e., the




                                               6
 1   elements—of the offense, and not to the particular underlying facts.’’ Hylton,

 2   897 F.3d at 60 (quotation marks omitted).

 3         On appeal, the petitioners again argue that their New York convictions

 4   under sections § 265.03 3 and § 265.11 of the New York Penal Law do not qualify

 5   as INA firearms offenses under § 1227(a)(2)(A)(iii) and § 1227(a)(2)(C) because of

 6   the “mismatch of their respective exceptions for conduct involving antique

 7   firearms.” Williams, 960 F.3d at 71. We agree that the firearms statutes of

 8   conviction at issue in these cases do not categorically match the grounds of

 9   removability asserted by the BIA.

10         The New York statutes of conviction here criminalize the possession and

11   sale of a “firearm.” N.Y. Penal L. §§ 265.03, 265.11. The definition of “firearm”

12   applicable to the state statutes of conviction for both Jack and Ag “does not

13   include an antique firearm,” which is defined to mean “[a]ny unloaded muzzle

14   loading pistol or revolver” meeting certain specifications. N.Y. Penal L.

15   § 265.00(3), (14) (emphasis added). Cf. Williams, 960 F.3d at 72. “In contrast,

16   section 921(a)(3) of title 18, whose definition of ‘firearm’ the INA adopts,




     3
      Because New York Penal Law sections 265.03(1)(a), (1)(c), and (2) are not relevant to
     our resolution of these petitions, we do not address the impact of a conviction under
     those provisions.
                                                 7
 1   provides without reference to whether the firearm is loaded that the term

 2   ‘firearm’ . . . does not include an antique firearm.” Williams, 960 F.3d at 73

 3   (quoting 18 U.S.C. § 921(a)(3)) (cleaned up); see 8 U.S.C. §§ 1101(a)(43)(C),

 4   1227(a)(2)(C); 18 U.S.C. § 921(a)(3), (a)(16). The New York firearms statutes of

 5   conviction thus criminalize conduct involving loaded antique firearms, while the

 6   INA’s removal provisions exclude loaded antique firearms. “The state

 7   prohibition and INA offense definition therefore do not match.” Williams, 960

 8   F.3d at 73.

 9         This “textual difference” relating to antique firearms creates a categorical

10   mismatch between the New York statutes and the INA’s definition of a firearm.

11   Id. The mismatch is “fatal” to the BIA’s decision that either of the petitioners’

12   firearms convictions are removable offenses. Id.

13         2. The Realistic Probability Test

14         Without such a categorical match, Jack and Ag were not removable as

15   charged. Rather than concluding that this should be the end of its analysis under

16   the categorical approach, the BIA proceeded to dismiss their appeals because

17   they failed to show a “realistic probability” that New York would prosecute

18   conduct involving loaded antique firearms that the federal statute did not cover.



                                               8
 1   See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (a petitioner must show

 2   “a realistic probability, not a theoretical possibility, that the State would apply its

 3   statute to conduct that falls outside the generic definition of a crime.”).

4          In doing so, the BIA applied the wrong legal standard and displayed a

 5   fundamental misunderstanding of the categorical approach. In Williams, we

 6   held that the realistic probability test applies only to statutes “of indeterminate

 7   scope” and “has no role to play in the categorical analysis . . . when the state

 8   statute of conviction on its face reaches beyond the . . . federal definition.”

 9   Williams, 960 F.3d at 77–78 (quotation marks omitted); see Hylton, 897 F.3d at 63

10   (“The realistic probability test is obviated by the wording of [a] state statute[]

11   [that] on its face extends to conduct beyond the definition of the corresponding

12   federal offense.”). As the Government acknowledges, the New York statutes at

13   issue here facially reach conduct not covered by 8 U.S.C. § 1227(a)(2)(A)(iii) and

14   § 1227(a)(2)(C). The BIA erred when it required the petitioners to show anything

15   further.




                                                9
1                                   CONCLUSION

2         Because the petitioners are not removable as charged, we GRANT the

3   petitions, VACATE the decisions of the BIA, and REMAND both causes to the

4   agency with instructions to terminate removal proceedings.




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