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BIA on Firearms, Categorical Approach: Matter of Ortega-Quezada

July 28, 2022 (1 min read)

Matter of Ortega-Quezada, 28 I&N Dec. 598 (BIA 2022) - The respondent’s conviction for unlawfully selling or otherwise disposing of a firearm or ammunition in violation of 18 U.S.C. § 922(d) (2018) does not render him removable as charged under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2018), because § 922(d) is categorically overbroad and indivisible relative to the definition of a firearms offense.

"[A]pplying the categorical approach, we conclude that 18 U.S.C. § 922(d) is overbroad relative to section 237(a)(2)(C) and indivisible with respect to whether a violation of the statute involved a “firearm” or “ammunition,” or “sell[ing]” or “otherwise dispos[ing] of” a firearm or ammunition. DHS therefore did not meet its burden of proving that the respondent has been convicted of a firearms offense within the meaning of section 237(a)(2)(C) of the INA, 8 U.S.C. § 1227(a)(2)(C). Because the respondent is not removable as charged, we will sustain the appeal and terminate the proceedings."

[Hats off to Pablo Rocha!]