In a published decision released this week, the BIA held that the burden of showing that a firearm qualifies as an “antique” firearm rests on the non-citizen. Matter of Mendez-Orellana, 25 I&N Dec. 254, 256 (BIA 2010) (Grant, Malphrus, and Mullane). An antique firearm cannot serve as the basis for removal under the firearms offense ground of removability. INA § 237(a)(2)(C) . Board Member Grant wrote the panel’s decision.
This case involved an LPR who argued that his California convictions for carrying a loaded firearm and carrying a concealed firearm did not render him removable under § 237(a)(2)(C) because DHS failed to show that the firearm at issue did not fall within the antique firearm exception. Matter of Mendez-Orellana, 25 I&N Dec. at 254-55. Section 237(a)(2)(C) explicitly relies on the definition of “firearm” located at 18 U.S.C. § 921(a). In turn, § 921(a)(3) states that the term “firearm” “does not include an antique firearm.”
It appears that Mendez-Orellana argued that DHS had failed to produce enough evidence to meet its burden of proving that his convictions satisfied the firearms ground of removability. According to the BIA, “[t]he Immigration Judge found that he was unable to determine on the record of conviction submitted by the DHS whether the firearm involved could be considered an antique. He therefore concluded that the respondent’s removability had not been established and terminated the proceedings.” Matter of Mendez-Orellana, 25 I&N Dec. at 255.
On appeal, DHS argued “that the antique firearm exception is an affirmative defense and the respondent submitted no evidence that the firearm used in the commission of his crimes was an antique.” Matter of Mendez-Orellana, 25 I&N Dec. at 255.
The BIA agreed with DHS, relying on the application of the antique firearm exception in criminal proceedings. As the BIA explained, “[i]t is well established in criminal proceedings that the ‘antique firearm’ exception in 18 U.S.C. § 921(a)(3) is an affirmative defense that must be raised by a defendant by sufficient evidence to justify shifting the burden to the Government to disprove its applicability.” Matter of Mendez-Orellana, 25 I&N Dec. at 255 (citing United States v. Lawrence , 349 F.3d 109, 122 (3d Cir. 2003)). The BIA incorporated this criminal application of the antique firearm exception into removal proceedings without any adjustment. Matter of Mendez-Orellana, 25 I&N Dec. at 256.
Consequently, “[w]here the DHS has presented evidence that an alien has been convicted of an offense involving a firearm, as that term is defined in 18 U.S.C. § 921(a)(3)(A-(D), it has met its burden of presenting clear and convincing evidence of deportability. The burden then shifts to the respondent to show that the weapon was, in fact, antique.” Matter of Mendez-Orellana, 25 I&N Dec. at 256.
The BIA’s opinion leaves unclear just how much evidence the non-citizen must produce “to show that the weapon was, in fact, antique.” Matter of Mendez-Orellana, 25 I&N Dec. at 256. “Simply raising the possibility” that the antique firearm exception might apply is not enough. Matter of Mendez-Orellana, 25 I&N Dec. at 256 (citing Lawrence, 349 F.3d at 123). The Third Circuit case cited by the BIA for that proposition explains that the antique firearm exception “must be raised by defendant and supported by some evidence before the government has to prove the contrary beyond a reasonable doubt.” Lawrence, 349 F.3d at 123. Using slightly different language, an Eighth Circuit decision cited by the BIA explains that a criminal defendant must “produce evidence sufficient to raise a genuine dispute about whether the firearm is an antique.” United States v. Washington, 17 F.3d 230, 232 (8th Cir. 1994). Just what quantum of evidence is necessary to shift the burden back to the government remains to be seen.