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Hubbard, Tracey M. DHS/ICE - Office of Chief Counsel - YOR
TMH Law Offices LLC 2350 Freedom Way, Suite 254
321 Spruce Street Ste 509 York, PA 17402
Scranton, PA 18503

Name: SANTANA COLON, CLAUDIO JO... A 098-087-566

Date of this notice: 6/30/2020

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Donovan, Teresa L.
Swanwick, Daniel L.
MONSKY,MEGANFOOTE

Userteam: Docket

For more unpublished decisions, visit

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Cite as: Claudio Jose Santana Colon, A098 087 566 (BIA June 30, 2020)
 U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A098-087-566 - York, PA Date:

JUN 3 O 2020
In re: Claudio Jose SANTANA COLON

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Tracey M. Hubbard. Esquire

APPLICATION: Cancellation of removal; termination

The respondent, a native and citizen of the Dominican Republic and lawful permanent resident
of the United States, has appealed from an Immigration Judge's January 2, 2020, decision finding
him removable as charged, 1 denying his application for cancellation of removal pursuant to section
240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a), and ordering him removed
from the United States. The Department of Homeland Security has not filed a response to the
appeal. The request for oral argument is denied. The appeal will be sustained, and the proceedings
will be terminated.

The record reflects that the respondent was convicted on January 26, 2018, for the offense of
firearms not to be carried without a license in violation of 18 PA. CONS. STAT. § 6106(a)(l)
(Exh. 121). He was charged with removability pursuant to section 237(a)(2)(C) of the Act,
8 U.S.C. § 1227(a){2)(C), for having been convicted of a firearm offense (Exh. 1). The
Immigration Judge found the respondent removable as charged under section 237(a)(2)(C) of the
Act based on this conviction. He concluded that the Pennsylvania statute of conviction is not
overbroad vis-a-vis the federal definition of a firearm offense (IJ Nov. 12, 2019, Dec. at 7). In
addition, he found that the respondent did not show a realistic probability that someone would be
prosecuted in Pennsylvania for unlawful carrying of an antique firearm, and thus has not shown
that Pennsylvania prosecutes conduct that falls outside of the generic federal definition of a firearm
offense (IJ Nov. 12" 2019, Dec. at 2).

Upon de novo review, we disagree with the Immigration Judge and conclude that the
respondent's conviction does not constitute a firearm offense under section 237(a)(2)(C) of the
Act because 18 PA. CONS. STAT. § 6106(a)(l) is "categorically broad" relative to a federal
firearm offense, as defined in 18 U.S.C. § 92l(a)(3), which defines the term "firearm" to exclude
antique firearms. 8 C.F.R. § 1003.l(d)(3)(ii).

We employ the categorical approach, which requires us to focus on the elements of the
respondent's offense of conviction and the minimum conduct that has a realistic probability of
being prosecuted thereunder, rather than the conduct involved in the actual offense.
1
In his January 2, 2020, decision, the Immigration Judge incorporated by reference his November
12, 2019, oral decision finding the respondent removable by clear and convincing evidence.

Cite as: Claudio Jose Santana Colon, A098 087 566 (BIA June 30, 2020)
A098-087-566

Moncrieffe v. Holder ., 569 U.S. 184, 191 (2013); see also Matter of Chairez, 26 I&N Dec. 349
(BIA 2014) ("Chairez f'), order vacated in part on other grounds on reconsideration by., 26 I&N
Dec. 478 (BIA 20I5), superseded in part by, 26 I&N Dec. 819 (BIA 2016). To qualify as a firearm
offense under section 237(a)(2)(C) of the Act, which prohibits the possession of a firearm as
defined in 18 U.S.C. § 92I(a)(3), the respondent's offense of conviction under 18 PA. CONS.

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STAT. § 6I06(a)(I) must be a categorical match to the generic federal definition of a firearm
offense.

18 PA. CONS. STAT.§ 6106(a)(1) provides as follows:

Except as provided in paragraph (2),

Any person who carries a firearm in any vehicle or any person who carrie§ a firearm
concealed on or about his person, except in his place of abode or fixed place of
business, without a valid and lawfully issued license under this chapter commits a
felony in the third degree.

Section 237(a)(2)(C) of the Act provides that: "[a]ny alien 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 92 I (a) of Title 18) in violation of any law is deportable." The federal generic
definition of a firearm states that '"[t]he term 'firearm' means (A) any weapon (including a starter
gun) which will or is designed to or may readily be converted to expel a projectile by the action of
an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm
silencer; or (D) any destructive device. Such term does not include an antique firearm." See
18 U.S.C.§ 921(a)(3).

Section 6106(a)(l) is categorically broader than 18 U.S.C.§ 92l(a)(3), which excludes antique
firearms from its definition of firearm. Rather, the definition of firearm for purposes of section
6106(a)(l) encompasses certain "antique firearms" that are "suitable for use." Specifically,
Pennsylvania's Uniform Firearms Act contains an exception stating that the subchapter on firearms
crimes does not apply to antique firearms. 18 PA. CONS. STAT.§ 6118(a). However, 18 PA.
CONS. STAT.§ 61l8(b) provides for an exception to the application of section 6118(a), stating
that the exception for antique firearms "shall not apply to the extent that such antique firearms,
reproductions or replicas of firearms are concealed weapons as provided in section 6106 (relating
to firearms not to be carried without a license), ... if such antique firearms, reproductions or
replicas of firearms are suitable for use." Commonwealth v. Berta, 514 A.2d 921, 923-24 (Pa.
Super. Ct. 1986) (finding that an unlicensed replica of a cap and ball revolver common in the late
nineteenth century fell within the proscriptions of the Uniform Firearms Act because, although it
was not loaded with black powder, percussion caps and lead balls, it could be put into operable
use and was thus "suitable for use" under I8 PA. CONS. STAT.§ 6 l 18(b)).

Thus, we conclude that I8 PA. CONS. STAT.§ 6106(a)(l) is categorically overbroad vis-a-vis
section 237(a)(2)(C) of the Act because it encompasses certain antique firearms that are suitable
for use and has been applied to prosecute offenses involving antique firearms whereas section

2
Cite as: Claudio Jose Santana Colon, A098 087 566 (BIA June 30, 2020)
A098-087-566

23 7(a)(2)(C) prohibits the possession of a firearm as defined in 18 U.S.C. § 921(a), which excludes
antique firearms from the definition. See Chairez I, 26 l&N Dec. at 356-57; Matter of Chairez,
26 I&N Dec. 819, 821 n.2 (BIA 2016) (noting that the section of Chairez I discussing a firearm
offense under section 237(a)(2)(C) of the Act is reaffirmed); Moncrieffe v. Holder, 569 U.S. at 191
(explaining that an alien who invokes an ·'antique firearm" argument in order to defeat an

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aggravateq felony charge ·'would have to demonstrate that the State actually prosecutes the
relevant offense in cases involving antique firearms"). Nor do we proceed to a modified
categorical approach because 18 PA. CONS. STAT. § 6106(a)(1) is not divisible as it does not list
multiple discrete offenses as enumerated alternatives or independent elements that must be proven
beyond a reasonable doubt. See Mathis v. United States, 136 S. Ct. 2243, 2248 (2016); Matter of
Chairez, 26 l&N Dec. at 822-23. Therefore, we conclude that the respondent's conviction is not
a firearm offense under section 237(a)(2)(C) of the Act, and he is not removable as charged. As
such, we_ need not address the respondent's arguments in the Notice of Appeal regarding the
Immigration Judge's discretionary denial of cancellation of removal.

Accordingly, the following orders are entered.

ORDER: The appeal is sustained.

FURTHER ORDER: The removal proceedings against the respondent are terminated.

3
Cite as: Claudio Jose Santana Colon, A098 087 566 (BIA June 30, 2020)