Portillo v. Department of Homeland Security

United States Court of Appeals
For the First Circuit
No. 22-1383
GERARDO A. PORTILLO,
Petitioner,
v.
US DEPARTMENT OF HOMELAND SECURITY,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Montecalvo and Thompson, Circuit Judges,
and Carreño-Coll, District Judge.
Jennifer Klein, with whom Committee for Public Counsel
Services, Susan B. Church, Demissie & Church, and Kathleen M.
Gillespie, were on brief, for petitioner.
Alexander J. Lutz, Trial Attorney, Office of Immigration
Litigation, with whom Brian M. Boynton, Principal Deputy Assistant
Attorney General, Civil Division, and Jennifer J. Keeney,
Assistant Director, Office of Immigration Litigation, were on
brief, for respondent.
May 30, 2023
 Of the District of Puerto Rico, sitting by designation.
MONTECALVO, Circuit Judge. Gerardo A. Portillo
petitions for review of a decision of the Board of Immigration
Appeals ("BIA") affirming his order of removal and denying his
application for adjustment of status. Because we find that a
conviction under Massachusetts General Laws ("MGL") ch. 269, § 11C
is not categorically a firearm offense as defined by 8 U.S.C.
§ 1227(a)(2)(C), we grant the petition for review, vacate the
decision below, and remand for further proceedings.
I. Background
Petitioner Portillo, a citizen of El Salvador, entered
the United States on a B-2 temporary visitor visa when he was less
than a year old. After more than a decade residing in the United
States, in June 2003, he adjusted his status to lawful permanent
resident.
On July 9, 2014, Portillo pleaded guilty in
Massachusetts state court to assault and battery upon a child
causing bodily injury, in violation of MGL ch. 265, § 13J(b);
three counts of possession of a firearm without a firearm
identification ("FID") card, in violation of MGL ch. 269, § 10(h);
and -- of particular relevance here -- defacing or receiving a
firearm with a defaced serial number, in violation of MGL ch. 269,
§ 11C. MGL ch. 269, § 11C provides:
Whoever, by himself or another, removes,
defaces, alters, obliterates or mutilates in
any manner the serial number or identification
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number of a firearm, or in any way
participates therein, and whoever receives a
firearm with knowledge that its serial number
or identification number has been removed,
defaced, altered, obliterated or mutilated in
any manner, shall be punished by a fine of not
more than two hundred dollars or by
imprisonment for not less than one month nor
more than two and one half years.
More than two and a half years after Portillo's
conviction, on April 4, 2017, the Department of Homeland Security
("DHS") initiated removal proceedings against Portillo.1 The
Notice to Appear charged Portillo with removal pursuant to 8 U.S.C.
§ 1227(a)(2)(C) based solely on his Massachusetts state court
conviction for "[p]ossession of a [f]irearm with [a] [d]efaced
[n]umber, in violation of [MGL ch. 269, § 11C]." It made no
mention of Portillo's other convictions.
The Immigration and Nationality Act ("INA") permits the
removal of a noncitizen convicted of "[c]ertain firearm offenses."
8 U.S.C. § 1227(a)(2)(C). More specifically, it states:
Any [noncitizen] who at any time after
admission is convicted under any law of
purchasing, selling, offering for sale,
exchanging, using, owning, possessing, or
carrying, or of attempting or conspiring to
purchase, sell, offer for sale, exchange, use,
own, possess, or carry, any weapon, part, or
accessory which is a firearm or destructive
device (as defined in section 921(a) of Title
18) in violation of any law is deportable.
1 Portillo's removal proceedings have a lengthy and
complicated procedural history. We limit our discussion of the
facts and procedural history to that necessary to understand our
decision.
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Id. Section 921(a)(3) of Title 18, which defines "firearm,"
explicitly excludes antique firearms -- that is, "any firearm . . .
manufactured in or before 1898" and certain replicas -- from its
definition. See 18 U.S.C. § 921(a)(3), (16).
Portillo moved to terminate the removal proceedings
against him, arguing that a conviction under MGL ch. 269, § 11C
did not qualify as a removable firearm offense. More specifically,
he contended that the Massachusetts statute defines firearm more
broadly than section 921(a) because the Massachusetts statute
lacks an exception for antique firearms.2
The Immigration Judge ("IJ") ultimately determined that
Portillo's conviction was categorically a firearm offense and
sustained the removability charge. The IJ reasoned that although
the Massachusetts statute lacks an explicit exception for antique
firearms, "Massachusetts allows a defendant to raise the
affirmative defense of an antique firearm." The IJ therefore held
that for Portillo to succeed he would need to establish a
Before the Immigration Judge and the BIA, Portillo asserted
2
that MGL ch. 269, § 11C was overbroad for a second
reason: Massachusetts's definition of firearm encompasses an
air-propelled firearm, such as a BB gun, whereas its federal analog
does not. Portillo has not advanced this argument on appeal. We
therefore deem it waived and do not address it. See Silva v.
Gonzales, 455 F.3d 26, 28 (1st Cir. 2006) ("[L]itigants have 'an
obligation to spell out [their] arguments squarely and distinctly,
or else forever hold [their] peace.'" (alterations in original)
(quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990))).
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"realistic probability" that Massachusetts would apply MGL
ch. 269, § 11C to prosecute conduct involving an antique firearm.
The IJ concluded that Portillo had failed to do so.
Portillo then applied to adjust his status based on his
marriage to a U.S. citizen and sought a waiver of inadmissibility.
On November 19, 2021, the IJ denied those applications, reaffirmed
his previous determination that Portillo's conviction under MGL
ch. 269, § 11C rendered Portillo removable, and ordered that
Portillo be removed to El Salvador.
Portillo appealed the IJ's November 19 decision to the
BIA. On April 25, 2022, the BIA affirmed the IJ's decision and
dismissed the appeal. Like the IJ, the BIA concluded that although
the Massachusetts statute does not contain an explicit exception
for an antique firearm, a defendant in Massachusetts may raise the
antiquity of a firearm as an affirmative defense. And it agreed
with the IJ's determination that even if MGL ch. 269, § 11C was
overbroad -- even facially so -- because it lacked an explicit
antique firearm exception, the Supreme Court's decision in
Moncrieffe v. Holder, 569 U.S. 184 (2013), requires Portillo to
establish a "realistic probability" that Massachusetts would apply
the statute to prosecute offenses involving antique firearms.
Because Portillo did not direct the BIA to any cases demonstrating
the use of MGL ch. 269, § 11C to prosecute conduct involving an
antique firearm, the BIA concluded that Portillo did not establish
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a "realistic probability" that the statute applied to antique
firearms and that he was removable under 8 U.S.C. § 1227(a)(2)(C).
Portillo timely filed this petition for review and moved
to stay his removal. We granted Portillo's motion for a stay and
now address his petition for review.
II. Standard of Review
When both the IJ and the BIA have issued an opinion, we
review the BIA's decision as well as any "aspects of the IJ's
opinion" adopted by the BIA. Touch v. Holder, 568 F.3d 32, 37
(1st Cir. 2009). "We review legal issues de novo," affording
deference to the BIA's reasonable interpretations of the INA and
its related regulations. Da Graca v. Garland, 23 F.4th 106, 109
(1st Cir. 2022). But we give no deference to the BIA's "reading
of an underlying [state] criminal statute (as to which it has no
expertise)." Patel v. Holder, 707 F.3d 77, 79 (1st Cir. 2013);
see Lecky v. Holder, 723 F.3d 1, 4 (1st Cir. 2013).
III. Discussion
The issue before us is whether a conviction for
possession of a firearm with a defaced serial number, in violation
of MGL ch. 269, § 11C, renders a noncitizen removable under
8 U.S.C. § 1227(a)(2)(C).
To answer that question, we employ the categorical
approach. De Lima v. Sessions, 867 F.3d 260, 262-63 (1st Cir.
2017). That approach requires us to determine whether the state
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offense categorically fits within the definition of the federal
offense. See id. at 263. If the state offense sweeps more broadly
and reaches more conduct than the federal offense, the two are a
categorical mismatch. See id. In conducting this analysis, we
limit our focus "to the statutory definition of the [state] offense
of conviction" and do not consider "the particulars of the
[noncitizen's] behavior." Id. at 262-63 (quoting Mellouli v.
Lynch, 575 U.S. 798, 805 (2015)); see also Moncrieffe, 569 U.S. at
190 (explaining that "the noncitizen's actual conduct . . . 'is
quite irrelevant'" in applying the categorical approach (citation
omitted)).
Our focus on the minimum conduct encompassed in the state
offense, however, is not a license "to apply 'legal imagination'
to the state offense." Moncrieffe, 569 U.S. at 191 (quoting
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). Instead,
"there must be 'a realistic probability, not a theoretical
possibility, that the [s]tate would apply its statute to conduct
that falls outside the generic definition of a crime.'" Id.(quoting Duenas-Alvarez, 549 U.S. at 193). If a "state statute is
'plainly' overbroad," a realistic probability that a state will
apply its statute to overbroad conduct is established. See Da
Graca, 23 F.4th at 113-14 (citation omitted).
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A. Comparing MGL ch. 269, § 11C with 8 U.S.C. § 1227(a)(2)(C)
With this framework in mind, we evaluate whether MGL
ch. 269, § 11C reaches more broadly than the federal "firearm
offenses" listed within the INA. As we previously mentioned, the
federal definition of firearm explicitly excludes antique
firearms. On appeal, Portillo maintains that MGL ch. 269, § 11C's
prohibition against defacing firearms and possessing such a
firearm applies to antique firearms. DHS counters that MGL
ch. 269, § 11C does not apply to antiques or that, at the very
least, it is ambiguous whether MGL ch. 269, § 11C applies to
antique firearms.
To determine whether MGL ch. 269, § 11C applies to
antique firearms, we must examine MGL ch. 269, § 11C's text, its
cross-references, and applicable Massachusetts caselaw. After
doing so, we conclude that MGL ch. 269, § 11C applies to antique
firearms.
We start our analysis with the text of MGL ch. 269, § 11C
itself. Section 11C prohibits the "defac[ing], alter[ation],
obliterat[ion] or mutilat[ion] in any manner [of] the serial number
or identification number of a firearm[]" and the knowing receipt
of such "a firearm." Section 11C's prohibition thus extends to
anything that is "a firearm." And nothing within section 11C
itself explicitly excludes antique firearms from its purview. So
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on its face there is nothing limiting section 11C's application to
antique firearms.
Next, we consider the cross-references. Section 11C
itself does not define firearm. Instead, it directs us to use the
definition of firearm in MGL ch. 140, § 121. See MGL ch. 269,
§ 11A ("For the purposes of" section 11C, "[f]irearm" shall mean
"a firearm as defined in [MGL ch. 140, § 121], or a rifle or
shotgun."). On the date of Portillo's conviction, section 121
defined firearm as follows:
a pistol, revolver or other weapon of any
description, loaded or unloaded, from which a
shot or bullet can be discharged and of which
the length of the barrel or barrels is less
than 16 inches or 18 inches in the case of a
shotgun as originally manufactured; provided,
however, that the term firearm shall not
include any weapon that is: (i) constructed in
a shape that does not resemble a handgun,
short-barreled rifle or short-barreled
shotgun including, but not limited to, covert
weapons that resemble key-chains, pens,
cigarette-lighters or cigarette-packages; or
(ii) not detectable as a weapon or potential
weapon by x-ray machines commonly used at
airports or walk[-]through metal detectors.
MGL ch. 140, § 121.
Section 121's definition of firearm thus appears to
encompass antique firearms. It defines firearm broadly and does
not differentiate amongst firearms by their year of manufacture.
See id. (encompassing "a pistol, revolver or other weapon of any
description" (emphasis added)). And while section 121's
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definition explicitly excludes certain weapons that might
conceivably fall within its reach, such as weapons not detectable
by x-ray machines, it does not explicitly exclude antiques.
But section 121 is not entirely silent on the age of a
firearm either. After defining a slew of other terms, section 121
states: "[t]he provisions of sections 122 to 129D, inclusive, and
sections 131, 131A, 131B and 131E shall not apply to[ ] any
firearm, rifle[,] or shotgun manufactured in or prior to the year
1899."3
Not surprisingly, the parties take diverging views of
the interplay between this statement and section 11C's
cross-reference to section 121. DHS argues that section 11C's
cross-reference to section 121 imports this antique firearms
exemption. Portillo maintains that section 121's antique firearms
exemption is inapplicable to section 11C because the exemption is
3When it applies, the Massachusetts antique exemption is
broader than the federal antique exception by one year. Compare
MGL ch. 140, § 121 (exempting firearms "manufactured in or prior
to the year 1899"), with 18 U.S.C. § 921(a)(3), (16) (exempting
firearms "manufactured in or before 1898"). The parties do not
contend that this one-year difference has any bearing on our
analysis. In any event, that Massachusetts's definition of an
antique firearm is broader than the federal definition by one year
does not defeat the categorical comparison. For a broader
exemption means that the state statute criminalizes less conduct
in that respect, not more. See Taylor v. United States, 495 U.S.
575, 599 (1990) ("If the state statute is narrower than the generic
[offense], . . . there is no problem, because the conviction
necessarily implies that the defendant has been found guilty of
all the elements of [the] generic [offense].").
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limited to the sections enumerated in the exemption and conduct
having a nexus to those provisions.
We agree with Portillo. Although section 121's antique
firearms exemption enumerates several sections to which it
applies, MGL ch. 269, § 11C is not one of them.4 Moreover, the
sections referenced in section 121's antique exemption address
state rules regarding gun licensing, FID cards, and the sale of
weapons and ammunition, not serial and identification numbers.
See MGL ch. 140, §§ 121 to 129D, 131, 131A, 131B, 131E. And
neither section 11C nor its definition section, MGL ch. 269, § 11A,
mention the antique exemption contained in section 121. Rather,
they mention section 121's definition of firearm, which says
nothing about antiques. See MGL ch. 269, § 11A (Firearm "shall
have the following meaning[:] . . . a firearm as defined in" MGL
ch. 140, § 121 (emphasis added)).
To be fair, Massachusetts courts have applied the
antique exemption as an affirmative defense to other provisions of
4 DHS asserts that section 11C's absence from this list is of
no moment, arguing that because the two sections are in different
chapters it would not make sense to list section 11C here. But
that has not stopped the Massachusetts legislature in the past.
In fact, as discussed infra, at the time Massachusetts first
criminalized the defacement of serial numbers, section 121
contained a limited antique exemption that explicitly applied to
a section of the criminal code -- MGL ch. 269, § 10B. Notably,
the Massachusetts legislature did not modify that exemption to
include MGL ch. 269, § 11C when it first enacted MGL ch. 269,
§ 11C.
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the criminal code despite those provisions not mentioning antiques
and the antique exemption not referencing those criminal
provisions. See Commonwealth v. Jefferson, 965 N.E.2d 800, 808
(Mass. 2012); see also Commonwealth v. Kang, 72 N.E.3d 560, 563
(Mass. App. Ct. 2017). And the BIA appears to have assumed that
Massachusetts would do the same when faced with a prosecution under
MGL ch. 269, § 11C. But a closer look at the Massachusetts Supreme
Judicial Court's decision in Jefferson suggests the opposite and
reinforces that section 121's definition of firearm includes all
firearms regardless of age.
In Jefferson, the Supreme Judicial Court recognized the
antiquity of a firearm as an affirmative defense to charges under
MGL ch. 269, § 10(a) and 10(n). 965 N.E.2d at 808. Those sections
criminalize, among other conduct, the carrying of a firearm without
a license issued under MGL ch. 140, § 131. See MGL ch. 269,
§ 10(a), (n). And like section 11C, those sections import section
121's definition of firearm. MGL ch. 269, § 10(a) ("Whoever,
except as provided or exempted by statute, knowingly has in his
possession . . . a firearm, loaded or unloaded, as defined in [MGL
ch. 140, § 121] . . . ."). But those sections contain one
additional cross-reference that section 11C does not: a reference
to one of the provisions that also is listed in section 121's
antique exemption, MGL ch. 140, § 131. And that reference is
critical.
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In recognizing an affirmative defense for antique
firearms to charges under MGL ch. 269, § 10(a) and 10(n), the
Supreme Judicial Court focused on those sections' relationship to
MGL ch. 140, § 131. It reasoned that because MGL ch. 140, § 121
exempts antiques from MGL ch. 140, § 131's licensing requirements,
"a person does not need a license to carry a firearm made before
1900." Jefferson, 965 N.E. at 808. The court concluded that the
carrying of an antique firearm "therefore[] is exempted by [MGL
ch. 140,] § 131 from the prohibition in [MGL ch.] 269, § 10(a),
against carrying a firearm without a license." Id. (emphasis
added). In other words, it was MGL ch. 269, § 10(a) and 10(n)'s
nexus to MGL ch. 140, § 131 -- and its resulting nexus to section
121's antique exemption -- that prompted the court to recognize an
affirmative defense for antique firearms, not that section 121's
definition of a firearm did not reach antiques or that the limited
exemption somehow creates a wholesale antique exemption.
That nexus is lacking here. Unlike the criminal offenses
in Jefferson, section 11C does not refer to any of the provisions
enumerated in section 121's antique exemption. See MGL ch. 269,
§§ 11A, 11C. Nor does section 11C deal with the licensing of
firearms. Thus, the basis for finding the antique exemption
applies -- some connection to one of the provisions enumerated in
section 121's exemption -- simply is not present. Accordingly,
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section 11C's reference to section 121 imports only the definition
of a firearm, not the antique exemption.
What is more, Jefferson reinforces the broad reach of
section 121's definition of firearm. Before recognizing an
affirmative defense based on the relevant provisions' nexus to MGL
ch. 140, § 131, the court first acknowledged that "[a] firearm
manufactured before 1900 is a 'firearm' within the definition of
[MGL ch.] 140, § 121." Jefferson, 965 N.E.2d at 808.
DHS encourages us to take a broader view of Jefferson,
asserting that context and common sense led Massachusetts to
recognize an antique firearms exemption and affirmative defense.
And it argues that, taken together, section 11C's presumption that
firearms have a serial number when manufactured and the lack of
either a Massachusetts or federal law requiring firearms to bear
a serial number until 1968 suggest that section 11C should not
apply to antiques. Even assuming that Jefferson permits us to
resort to such considerations, we disagree that context and common
sense suggest that section 11C does not apply to antique firearms.
As an initial matter, DHS's assertion that section 11C
presumes firearms have a serial number when manufactured rests on
shaky ground. To support this assertion, DHS relies on a series
of cases which suggest little evidence is required to establish
the defacing or removal of a serial number. But even in those
cases, the court required some evidence of defacing or removal of
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the serial number. See Commonwealth v. Kante, 167 N.E.3d 892(Mass. App. Ct. 2021) (unpublished table decision) (sustaining
conviction where "slide had been machined by . . . some brushing
type of tool" and "the serial number was obliterated, meaning, you
could no longer see it" (alterations and internal quotation marks
omitted)); Commonwealth v. Jones, 900 N.E.2d 535 (Mass. App. Ct.
2009) (unpublished table decision) (sustaining conviction where
"serial number was scratched and 'pretty blurry'; there were
'markings';" and officer could not read the number); Commonwealth
v. Pacheco, 28 N.E.3d 13 (Mass. App. Ct. 2015) (unpublished table
decision) (sustaining conviction where officers testified that the
"serial number had been 'altered' or 'scratched out'");
Commonwealth v. Grant, 783 N.E.2d 455, 460 (Mass. App. Ct. 2003)
(sustaining conviction where defendant stated "that the serial
number 'was already scratched off' when he purchased the firearm").
Admittedly, the burden to establish prima facie evidence
of a violation of section 11C is not onerous. And it may be that
the Commonwealth does not have to prove that a firearm had a serial
number on it when it was manufactured. See Pacheco, 28 N.E.3d at
13 ("[P]ossession of a firearm from which the serial number has
been removed or defaced is prima facie evidence of a violation of
the statute, as it is presumed that a firearm has a serial number
on it when it is manufactured."). But even if there were a
presumption that a firearm has a serial number on it at the time
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of manufacture, in our view, that says more about whether a
defendant may avoid a conviction under section 11C by arguing that
a specific weapon was manufactured without a serial number than
whether section 11C imports section 121's antique weapons
exemption.
The fact that neither Massachusetts nor federal law
required all firearms to be manufactured with serial numbers until
1968 also does not persuade us. See Act of July 20, 1968, ch. 737,
1968 Mass. Acts 631-32 (adding MGL ch. 269, § 11E); Pub. L. No.
90-351, 82 Stat. 197, 231 (1968) (adding 18 U.S.C. § 922(i)). Just
because the law did not require serial numbers before 1968 does
not mean they did not exist before then. Even though Massachusetts
and federal law did not legally require serial numbers on all
firearms until 1968, Massachusetts criminalized the defacing and
removal of serial numbers in 1937, suggesting that some
manufacturers used serial numbers before 1968.5 See Act of Apr.
13, 1937, ch. 199, 1937 Mass. Acts 170-71 (penalizing the removal
and defacing of serial numbers of firearms as well as the knowing
receipt of such firearms). And we know that some manufacturers
5 Moreover, although serial numbers were not federally
required for all firearms until 1968, federal law required a
limited subset of firearms, such as machine guns and short-barreled
rifles, to bear serial numbers beginning in 1934. See United
States v. Price, No. 2:22-cr-00097, 2022 WL 6968457, at *5 (S.D.W.
Va. Oct. 12, 2022) (citing National Firearms Act, Pub. L. No.
73-474, § 8(a), 48 Stat. 1236, 1239 (1934)).
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did. Indeed, some manufacturers started using serial numbers well
before 1900.6 See, e.g., Thomas Henshaw, The History of Winchester
Firearms 1866-1992, at ix (6th ed. 1993); Serialization, National
Rifle Association,
https://www.nramuseum.org/media/940941/serialization-
date%20of%20manufacture.pdf (last visited May 26, 2023) (noting
some firearms with serial numbers dating back to the 1840's);
Firearm Serial Numbers, Springfield Armory, National Park Service,
https://www.nps.gov/spar/learn/historyculture/firearm-serial-
numbers.htm (last visited May 26, 2023) (noting that firearms
manufactured at Springfield Armory started receiving serial
numbers in 1865). Thus, we see no reason to read in an antique
exemption where some antiques have serial numbers and
Massachusetts began criminalizing the defacing of those
manufacturer-stamped serial numbers in 1937.
Seeking a way around the 1937 criminalization of
defacing and removal of serial numbers, DHS asks us to consider
the broader context of Massachusetts's firearms law in 1937 and
give some weight to Massachusetts's inclusion of an antique
exemption since 1934. That antique exemption bears similarities
to the current exemption in section 121. Compare Act of June 29,
In fact, the serial number is how the defendant's expert in
6
Jefferson purported to know that the firearm at issue in that case
was manufactured in 1896. 965 N.E.2d at 808.
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1934, ch. 359, 1934 Mass. Acts 496 ("[S]ections [122] to [129],
inclusive, and section [10B] of chapter [269], shall not apply to
antique firearms incapable of use as firearms."), with MGL
ch. 140, § 121.
DHS, however, offers nothing more to suggest that
Massachusetts historically applied the antique exemption to
section 11C. And a review of the history of the antique exemption
suggests the opposite. Three years before Massachusetts
criminalized the defacing and removal of serial numbers, in 1934,
it enacted a law requiring dealers to collect information about
the delivery of firearms and criminalized the failure to do so as
well as an individual's falsifying of such information. See Act
of June 29, 1934, ch. 359, 1934 Mass. Acts 496-97 (adding MGL
ch. 269, § 10B). At the same time, Massachusetts amended MGL
ch. 140, § 121's antique exemption to indicate that the new
provision did not apply to antiques. Id. at 496. That provision
and section 121's antique exemption's reference to it remained in
effect until 1957. See Act of Aug. 21, 1957, ch. 688, 1957 Mass.
Acts 597-98 (removing MGL ch. 140, § 121's reference to MGL ch.
269, § 10B), 606 (repealing MGL ch. 269, § 10B). Yet, in 1937,
when Massachusetts added section 11C, it did not amend section
121's exemption to include section 11C, suggesting that the
exemption did not apply to section 11C. See Act of Apr. 13, 1937,
ch. 199, 1937 Mass. Acts 170-71. So the existence of an antique
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exemption that did not apply to section 11C in 1937 does little to
help DHS demonstrate a similar antique exemption applies today.
In short, section 11C contains neither an explicit
exemption for antique firearms nor an affirmative defense for
antique firearms, and section 121's definition of firearm clearly
reaches those firearms manufactured before 1899. Context and
common sense do not convince us otherwise. Section 11C therefore
is overbroad when compared to its federal counterpart.
B. Realistic Probability Test
The BIA concluded that even if MGL ch. 269, § 11C "is
overbroad because it does not contain an explicit antique firearm
exception," Portillo still had not proven section 11C's
overbreadth because he "ha[d] not established a realistic
probability" that Massachusetts would apply section 11C to conduct
involving antiques. It determined that Portillo needed to, but
did not, identify an actual case in which Massachusetts applied
section 11C to prosecute offenses involving an antique firearm.
Portillo argues that the BIA's demand for an actual case conflicts
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with our caselaw and that he need not produce an actual case given
section 11C's facial overbreadth.7 We agree with Portillo.
This court has previously held that "where a statute is
facially broader than its generic counterpart," an actual case is
not required to satisfy the realistic probability test. Da Graca,
23 F.4th at 113; see also Swaby v. Yates, 847 F.3d 62, 66 (1st
Cir. 2017) (realistic probability test met where "[t]he state crime
. . . clearly [] appl[ies] more broadly than the federally defined
offense"); Whyte v. Lynch, 807 F.3d 463, 467-71 (1st Cir. 2015)
(not requiring petitioner to point to an actual case where plain
language of state statute was overbroad, state authority did not
detract from plain language, and common sense suggested state could
apply state statute in overbroad manner). The BIA's determination
to the contrary was error.
As we have explained before, the realistic probability
test has its origins in Gonzales v. Duenas-Alvarez, 549 U.S. 183(2007). Da Graca, 23 F.4th at 113. In Duenas-Alvarez, the Supreme
Court cautioned that finding a state statute overbroad "requires
more than the application of legal imagination to a state statute's
7 Portillo concedes that he has not identified a case in which
Massachusetts has prosecuted conduct involving an antique firearm
under MGL ch. 269, § 11C. And when we look at the seventy-four
Massachusetts state court opinions on Westlaw that cite MGL
ch. 269, § 11C, none concern convictions under MGL ch. 269, § 11C
for conduct involving antiques. But those cases also do not
suggest that antique firearms are excluded from prosecution.
Indeed, we see no discussions about the age of a firearm.
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language. It requires a realistic probability, not a theoretical
possibility, that the [s]tate would apply its statute to conduct
that falls outside" the federal offense. 549 U.S. at 193.
But we have not read Duenas-Alvarez's "sensible caution
against crediting speculative assertions regarding the potentially
sweeping scope of ambiguous state law crimes" to require an actual
case invariably. Swaby, 847 F.3d at 66. Instead, we have
recognized that such caution "has no relevance" where "[t]he state
crime at issue clearly does apply more broadly than the federally
defined offense." Id. That is so because to require an actual
case in such a scenario would say more about the state's
prosecutorial decisions than the state statute's application. See
Da Graca, 23 F.4th at 113-14.
To the extent that DHS argues Moncrieffe nevertheless
requires Portillo to unearth an actual case showing an actual
conviction in Massachusetts under MGL ch. 269, § 11C for defacing
an antique firearm, we disagree. In Moncrieffe, the Supreme Court
stated that "to defeat the categorical comparison" with a state
firearms law lacking an exception for antique firearms, "a
noncitizen would have to demonstrate that the [s]tate actually
prosecutes the relevant offense in cases involving antique
firearms." 569 U.S. at 206.
We do not read this Moncrieffe dictum to carve out a
special actual case requirement for all categorical analyses that
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implicate antique firearms. Moncrieffe's statement also stems
from "Duenas-Alvarez['s] require[ment] that there be 'a realistic
probability, not a theoretical possibility, that the [s]tate would
apply its statute to conduct that falls outside the generic
definition of a crime.'" Id. at 205-06 (quoting Duenas-Alvarez,
549 U.S. at 193). So that Moncrieffe dictum cannot require an
actual case anymore than Duenas-Alvarez can. And as we explained
at length above and in our prior cases, Duenas-Alvarez does not
require an actual case in circumstances like those here.
We are not alone in concluding that Moncrieffe does not
change the calculus of how to apply the categorical approach to
firearms offenses. The Fourth Circuit concluded the same in Gordon
v. Barr, 965 F.3d 252, 259-61 (4th Cir. 2020). In Gordon, the
Fourth Circuit confronted a Virginia statute that prohibited the
discharge of "any firearm" in a public place. Id. at 258-59.
Based on the text of the statute, the Supreme Court of Virginia's
pronouncement that the term "any firearm" included all firearms,
and the legislature's decision to explicitly include antique
exceptions for other statutes but not the one at issue, the Fourth
Circuit concluded that the statute's prohibition against
discharging a firearm reached antiques. Id. at 258-60. And,
despite Moncrieffe's dictum, the Fourth Circuit did not require
the noncitizen to then "'find a case' in which the state
successfully prosecuted a defendant" for discharging an antique
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firearm. Id. at 260. Instead, it reaffirmed that "when the state,
through plain statutory language, has defined the reach of a state
statute to include conduct that the federal offense does not, the
categorical analysis is complete; there is no categorical match."
Id.; see also Williams v. Barr, 960 F.3d 68, 72 (2nd Cir. 2020)
("The 'realistic probability test' . . . has no role to play in
the categorical analysis . . . when the state statute of conviction
on its face reaches beyond the generic federal definition.").
Perhaps recognizing that our precedent does not always
require a noncitizen to find an actual case to prove a categorical
mismatch, DHS attempts to differentiate the present case from Da
Graca, Swaby, Whyte, and Gordon, by asserting that those cases
"involved clear textual or contextual clues" of overbreadth that
are lacking here. The BIA appears to have drawn a similar
distinction in concluding its demand for an actual case did not
conflict with our decision in Whyte. It reasoned that whereas in
Whyte "the state statute expressly proscribed conduct beyond the
generic offense," here the state statute was "silent on whether it
involves antique firearms" and state law permitted an affirmative
defense of an antique firearm.
The problem for DHS is that we are not presented with a
statutory scheme that lacks an exemption for antique firearms
wholesale or where we are left to wonder whether a firearm, as
defined in MGL ch. 140, § 121, encompasses an antique firearm.
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The textual and contextual clues are clear. Massachusetts defines
firearm to include antiques. See MGL ch. 140, § 121; Jefferson,
965 N.E.2d at 808 ("A firearm manufactured before 1900 is a
'firearm' within the definition of [MGL ch.] 140, § 121."). And
it explicitly has an exemption for antiques. See MGL ch. 140,
§ 121. But by its own terms that exemption is limited and does
not apply to MGL ch. 269, § 11C. Id. And Massachusetts caselaw
interpreting the interplay between that exemption and
Massachusetts criminal provisions does not suggest that the
exemption applies. See Jefferson, 965 N.E.2d at 808. Rather, it
reinforces that there is no basis to apply it here. Id.
Accordingly, without resorting to "legal imagination,"
we conclude that MGL ch. 269, § 11C sweeps more broadly than the
federal offense, and Portillo need not produce an actual case to
demonstrate that overbreadth.
IV. Conclusion
For the reasons stated above, we grant the petition for
review, vacate the BIA's opinion, and remand for further
proceedings consistent with this decision.
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