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).