The term “firearm” “does not include an antique firearm.”[85]  Title 18 U.S.C. § 921(a)(16) defines that term as follows:

 

The term “antique firearm” means —

 

(A)      any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or

 

(B)      any replica of any firearm described in subparagraph (A) if such replica —

(i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or

(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or

 

(C)      any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term “antique firearm” shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.

 

In a federal criminal case, the government must prove beyond a reasonable doubt that the firearm in question is not an antique firearm once the defendant produces evidence sufficient to raise genuine dispute about whether the firearm is antique.[86]

 

For purposes of the firearm deportation ground, if the record of conviction establishes that the state firearms conviction involved a weapon that fits within the Antique Firearm Exception defined in the federal statute, the weapon involved does not constitute a “firearm.”  Counsel should therefore argue that if the record of conviction does not make clear whether the firearm involved falls within the Antique Firearm Exception in the federal statute, the DHS cannot establish the firearms deportation ground, since it bears the burden of proof.[87] 

Unfortunately, however, the BIA has ruled respondent bears the burden of proof on this issue, even in deportation proceedings.[88]  This flies in the face of the general rule that the government bears the burden of proof of every element of a ground of deportation.  See § 17.9, supra.

[85] 18 U.S.C. § 921(a)(3).

[86] United States v. Arnett, 327 F.3d 845 (9th Cir. Apr. 24, 2003) (collateral estoppel prevented petitioner from relitigating an issue litigated and lost in an Oregon federal trial - that the short-barreled shotgun he used in both the California and Oregon robberies was an “antique” under 18 U.S.C. § § 921(a)(3) and (a)(16)(A)); United States v. Washington, 17 F.3d 230 (8th Cir. 1994), cert. denied, 513 U.S. 852 (1994); United States v. Smith, 981 F.2d 887 (6th Cir. 1992); United States v. Laroche, 723 F.2d 1541 (11th Cir. 1984), cert. denied, 467 U.S. 1245 (1984); United States v. Smith, 685 F.Supp. 1523 (D. Ore. 1988), aff’d in part, 876 F.2d 898 (9th Cir. 1989), cert. denied, 493 U.S. 869 (1989).  But see United States v. Green, 515 F.Supp. 517 (D. Md. 1981) (replica of 1859 black powder percussion pistol, which fell within statutory definition of “antique firearm,” but which was functional, was both a “firearm” and a “handgun” for purposes of prosecution for felon in possession of firearm, even though ATF had interpreted the statute not to apply to antique firearms, which do not utilize fixed ammunition).

[87] Cf. Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965) (record of conviction failing to identify the particular controlled substance meant that the INS had not met its burden of proof from the record that the substance at issue actually was a controlled substance on the federal controlled substances list).

[88] Matter of PF, 20 I. & N. Dec. 661 (BIA 1993) (“In the absence of any evidentiary showing by the respondent that the weapon was an antique firearm, we find that the conviction record establishes that the respondent used a “firearm,” as defined by 18 U.S.C. § 921(a) (1988), in the commission of the armed robbery.  See United States v. Laroche, 723 F.2d 1541 (11th Cir.), cert. denied, 467 U.S. 1245 (1984).”).

FIREARMS " ANTIQUE FIREARMS " CALIFORNIA " REASONABLE PROBABILITY
The Immigrant Legal Resource Center has a declaration from a California attorney establishing that in San Bernardino County, the prosecutor prosecuted a felon in possession of two antique/replica civil war era guns, under Penal Code 12021(a). This is the same definition of firearm that is used in a number of California firearms statutes. This declaration establishes not only that there is a reasonable probability that the prosecutors in California prosecute antique firearms under the California definition of firearms, but that they have actually done so. Thanks to Daniel G. Degriselles.

BIA

FIREARMS OFFENSES - ANTIQUE FIREARM DEFENSE
Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA Jun. 9, 2010) (the antique firearm exception in 18 U.S.C. 921(a)(3) is an affirmative defense that must be proven by the noncitizen after the DHS has established the conviction by clear and convincing evidence). NOTE: the BIA did not specify the standard (e.g. preponderance of the evidence) by which the noncitizen must prove the exception applies. This decision appears to conflict with the general rule, both statutory and under the Woodby Supreme Court decision, placing the burden of persuasion on the government to establish every fact necessary to establish deportability, and may be challenged in circuit court.

Ninth Circuit

AGGRAVATED FELONY " FIREARMS OFFENSES " ANTIQUE FIREARMS DEFENSE
United States v. Hernandez, 769 F.3d 1059 (9th Cir. Oct. 20, 2014) (per curiam) (California conviction for being a felon in possession of a firearm under California Penal Code 12021(a)(1), did not categorically qualify as a listed firearms aggravated felony, under INA 101(a)(43)(E), 8 U.S.C. 101(a)(43)(E), since the state did not have an exception for antique firearms, as federal law did, and the state in fact prosecuted defendants under this statute for being in possession of antique firearms, and the state statutory definition of firearm is not divisible, so resort to the modified categorical analysis or record of conviction is prohibited).

FIREARMS OFFENSES " CARRYING A FIREARM IN THE COURSE OF A FELONY
Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. Oct. 10, 2014), withdrawing prior opinion at 767 F.3d 801 (9th Cir. Sept. 19, 2014) (California conviction of possession for sale of a controlled substance, in violation of Health & Safety Code 11351, with a sentence enhancement for carrying a firearm during that offense, in violation of Penal Code 12022(c), did not constitute a deportable firearms offense, under INA 237(a)(2)(C), 8 U.S.C. 1227(a)(2)(C), since former Penal Code 12001(b), which defined "firearm" at the time of petitioner's conviction, was overbroad with respect to the federal firearms definition, which includes an exception for antique firearms that the California definition does not: We hold that Aguilera"Rios applies to any California statute based on the definition of firearm formerly appearing at 12001(b). Although the underlying conviction in Aguilera"Rios was obtained under former California Penal Code 12021(c)(1), that statute incorporates by reference the same definition of firearm as does 12022(c), the statute of Medina's conviction. This is sufficient to bind us to Aguilera"Rios's holding.); following United States v. Aguilera"Rios, 754 F.3d 1105, 1112 (9th Cir. 2014) (California conviction for possession of a firearm under former California Penal Code 12021(c)(1), which used the state firearms definition provided under former California Penal Code 12021(c)(1), did not categorically match the federal firearms definition, because it did not incorporate the same antique firearms exception as the federal statute). Cross-References: Cal Crim Def Immig 16.12.

AGGRAVATED FELONIES " FIREARMS OFFENSES " ANTIQUE FIREARMS
United States v. Aguilera-Rios, ___ F.3d ___, 2014 WL 2723766 (9th Cir. Jun. 17, 2014) (California Penal Code 12021(c)(1), current Penal Code 29800, is not a categorical aggravated felony firearms offense, since the statute lacks an antique firearms exception); explicitly partially overruling Gil v. Holder, 651 F.3d 1000, 1005"06 (9th Cir. 2011), and implicitly partially overruling Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010).

FIREARMS OFFENSE " ANTIQUE FIREARMS DEFENSE TO REMOVAL " OPEN QUESTION IN NINTH CIRCUIT
Pagayon v. Holder, ___ F.3d ___, 2011 WL 2508239 (9th Cir. Jun. 24, 2011) (per curiam) (California conviction of violating Penal Code 12021(a)(1), possession of firearms by felons and drug addicts, is not categorically a deportable firearms conviction, under INA 237(a)(2)(C), 8 U.S.C. 1227(a)(2)(C), because the record of conviction does not show that he was convicted of possessing a non-antique firearm that fell within the federal definition of firearm: As noted, we leave for another day whether such proof is required to establish removability based on a conviction under Cal. Penal Code 12021(a)(1).).

Other

FIREARMS " ANTIQUE FIREARMS " CALIFORNIA " REASONABLE PROBABILITY
The Immigrant Legal Resource Center has a declaration from a California attorney establishing that in San Bernardino County, the prosecutor prosecuted a felon in possession of two antique/replica civil war era guns, under Penal Code 12021(a). This is the same definition of firearm that is used in a number of California firearms statutes. This declaration establishes not only that there is a reasonable probability that the prosecutors in California prosecute antique firearms under the California definition of firearms, but that they have actually done so. Thanks to Daniel G. Degriselles.

CD4:15.34;AF:6.30;CMT3:10.31;PCN:10.15; CPCN:2.10; 11.21
While the Board of Immigration Appeals has previously held that a nonimmigrant would have to affirmatively show that the firearm in the particular case actually was an antique (Matter of Mendez-Orellana (BIA 2010) 25 I&N Dec 254, 255), it would appear that the Supreme Court overruled that finding in Moncrieffe v Holder (2013) 133 SCt 1698, 1673. In Moncrieffe, the Court both reaffirmed that a statute defining an offense of conviction must be evaluated solely on the minimum conduct sufficient to commit it, and specifically discussed the antique firearm exception. The Court stated that as long as there is a realistic probability that antique firearms actually are prosecuted under the state statute at issue, a conviction should not be held a deportable firearm offense. Despite Moncrieffe, however, there is real uncertainty as to how the antique firearm defense will be treated in immigration court, and defense counsel should not count on it to save a defendant from deportation " unless the weapon involved in the offense really was a qualifying antique firearm. Otherwise, if the general antique firearm defense is the only alternative, the plea should be restricted to California offenses in which antique firearms actually have been prosecuted. See former Cal. P.C. 12022 (armed with antique weapon while committing felony) and former P.C. 12021 (possession by felon), and their current equivalent statutes, and see, e.g., People v. Gossman, 2003 WL 22866712 (2003); People v. McGraw, 2004 WL 928379 (2004). The California Penal Code, unlike 18 U.S.C. 921(a)(3), makes it a crime to possess an antique firearm. Penal Code 25400(a); see Gil v. Holder, 651 F.3d 1000, 1005 (9th Cir. 2011) (holding that conviction under predecessor California statute met federal gun definition even though former statute included conviction for an antique firearm, because antique firearm was an affirmative defense, rather than an element of the offense). Despite the fact that convictions under the California statute would seem necessarily to fail the categorical inquiry, a noncitizen convicted under this provision still must show a realistic probability that California would prosecute a defendant for having an antique weapon. See Moncrieffe v Holder, ___ US ___, 133 SCt 1678, 1693 (2013). See also People v. Robinson (2011) 199 CA4th 707, 131 CR3d 177 (affirming that California firearms definition, applicable to the state felon in possession offense, Penal Code 12021, criminalizes possession of antique or inoperable firearms); People v. Wolfe (2003) 114 Cal.App.4th 177, 7 Cal.Rptr.3d 483 (California prosecution for possession of a firearm, after having suffered a conviction for a felony or qualifying misdemeanor, in violation of Penal Code 12021(c)(1), based on possession of a Winchester 16"gauge shotgun and a bolt-action Sharps shotgun, which appeared to be antique firearms); People v. Claseman (1986) 183 Cal.App.3d Supp. 1, 229 Cal.Rptr. 453 (documenting prosecution for violation of Penal Code 12025(a), carrying a firearm concealed in a vehicle, on the basis of an antique firearm; conviction reversed since firearm was inoperable, not because it was an antique).