steve gordon miss kim and i are dividing argument on behalf of mr gordon today i will address the arguments discussed in sections one to three of our opening brief and this can will address the arguments discussed in sections four and five mr gordon the united states lawful permanent resident for twenty six years was removed to jamaica based on the misdemeanor conviction from november two thousand mr gordon was removed because the b i a erred as a proofs of the successful prosecution of an individual for contest in virginia that does not constitute a certain firearms offense under the i and a miss can well address argument in the alternative regarding the board error which is that the board erred as a matter of law when it ignores that mr gordon did in fact submit proof of the successful prosecution of individuals in virginia for conduct involving antique firearms under the i and a because the federal definition of firearm excludes antique firearms and the virginia definition that applies to eighteen got to dash to eighty does not a categorical approach search the immigration law system it is rooted in the congressional intent that immigration consequences flow from a conviction and not from conduct so the question under the categorical approach is what did the state necessarily establish when it convicted mr gorton of a misdemeanor under virginia code section eighteen dust to dust to eighty another way of saying this is what are the elements of that approach a new code offense what is the minimum culpable conduct if as here the minimum culpable conduct under the virginia code does not rise to the level of a removable offense there is no categorical match the and that office is therefore straightforward we look st to the language of the statute itself in the context of the entire statutory scheme virginia criminalizes of variety of conduct implicating health and safety under chapter seven of its coast including dozens of firearms offenses among these is virginia code eighteen that to dash to eighty willfully discharging firearms in public places the statute at issue in mr gordon's removal proceedings reckless leader of law that's correct your honor mr carden was convicted of a misdemeanor offense and sentenced to one hundred dollars fine and ten days to be served on weekends only some of these firearm offenses include their own explicit statutory definitions some leverage in your code eighteen that to pass to eighty two not but where the virginia general assembly wish to exclude antiques from offenses in the same manner as the i and a and the federal criminal code excludes antiques from the definition of firearm it knew how to do so for example in virginia code  eight that to two which is related to criminal history checks for firearm purchases as the virginia general assembly specified that in fort smith of that provision excludes antique firearms specifically exclude application to antique firearms for nonviolent offenders only and other words it's still criminalizes the possession of the antique firearms for violent offenders virginia has continued that march to this that although we use the term firearm in the code that particular provision does not apply to antique firearms in other words under chapter seven of the virginia code a reference to firearms should be understood to have government says that moncrief take takes off the table this idea that it's not mentioning an exclusion for antique firearms makes the state statutes  not a categorical match for the federal fact here i take it you disagree with that but is there is there more to your argument  even if that were the case that there are other ways that your client could indicate that virginia that it's not improbable that virginia would prosecute the categorical roach for firearms offenses specifically nd there are additional ways in which a petition petition or like mr gordon can demonstrate overdress beyond looking at the language of the statute itself and that includes the pronouncements of the state court interpret ing that statutory language which is the next section of our commit before i trying to that i will note that  analysis be in other words moncrief was saying you have to look further arguably because the record on its face and moncrief did not show what in that in in the exact conception of months grief that you just explained which is that the supreme court only went beyond the plain language of the stocks you where the plain language of the statute does not resolve the analysis to your honest question and to judge russians question only confirms our interpretation of the language of the statute itself which is of a by the pronouncements of virginia's highest court armstrong versus commonwealth of virginia supreme court case from two thousand to the virginia supreme court explained that the general assembly of virginia intended to include any insurance designed made and intended to fire or expel a projectile by means of an explosion within the definition of a firearm absent express language to the contrary and that importing any unstated requirement otherwise would amount to an unreasonable restrictive interpretation of that term and subvert the intent of the general assembly the weapon at issue in armstrong versus common situation like you're describing where there's the purpose perhaps a crime of you thing i firearm a commission of another sense well the legislature we've been told wanted to protect against the fear to protect against the physical danger of discharge of a firearm how does how does that play into your argument about whether it's probable d that the for cable networks would actually in force the statute understood different definitions depending on the purpose of the interest protected by the particular offense under the original code and that gerald versus commonwealth which is  weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action or an explosion of a combustible material i believe your honor that the firearm that is a weapon that will or is designed to or may readily be converted to expel projectiles antique firearms fall under the definition of firearm in eighteen to dash to eighty general vs common law says entirely it does not fall within the generically defined federal crime just discharge of an antique firearm because the minimum culpable conduct punishable under virginia code section eighteen that to dash to eighty i code section eight hundred s to dash to a b is in fact applied to non removable conduct because the realistic probability test simply does not apply at least not in the way that the government asserts and that the board concluded properly understood the realistic probability test applies to require a respondent to submit evidence of successful prosecution only after the government has met its burden to show a categorical match between the statute does conviction and the generic federal offense so are you not excusing this latest judge keenan so you're saying that the no realistic probability you do not your honor that ford's interpretation of state law is not entitled to deference under shut down because the board has no special expertise in the application of virginia state law satisfied that as well the realistic probabilities does exist to curb illegal imagination so that we don't conjure of fanciful fact patterns of this court has said before about the minimum conduct punishable under a statute but here there is no legal imagination necessary to determine that it's an individual or to willfully discharge a firearm in a public place burghardt list of whether that firearm was one magical factor before or after a certain year or a muzzle loading firearm as opposed to a priest loading one that virginia was prosecute the individual mr gordon is contending that under the virginia supreme court definition definition of firearms in armstrong's the commonwealth all virginia firearms statutes cover and take firearms unless explicitly legislated otherwise and in order to show that mr gordon points to two cases this because number one the state is the expert on the elements and this court is constrained by the state courts interpretations of that statute and we can look to start and miller which analyzes the definition of the term firearm in relevant fire statutes because this court has and can look to the relevant statutes to conduct their realistic probability analysis so looking at what the virginia supreme court has said in armstrong commonwealth the court there said that the firearm statues are read in party material to give consistent meaning throughout the entire code and then the court there looking across a number of different firearms statutes stated that the general assembly intended to include any instrument design made fire or expel a projectile by means of an explosion within the definition of a firearm across the code absent xpress language to the contrary so knowing all of this we can now turn to star in and miller start in is a case that involves a statute eighteen dollars through it point two which punishes felons in possession of a firearm in that case the trial court successfully convicted mr miller for owning a muzzle loading rifle which is an antique firearm under both the federal and the virginia state definitions the case was the conviction was in fact overturned on appeal of the for the court of appeals in virginia but that was based on due process grounds because the court there found that the probation officer gave mr miller wrong information about whether docu was actually able to own that firearm and the circumstance therefore a call for an exception to the adoption of ignorance of the law is no excuse the law here being that mr miller was in fact not allowed to own an antique firearm under this provision and this is further confirmed by the fact that in two thousand and seventeen the general assembly amended this provision to explicitly exclude a firearm in committing a felony so in that case with the firearm in question was john wayne a replica which was one manufactured before eight hundred and ninety eight thereby making it an antique firearm under both the federal and the state definitions there the court affirmed that conviction and in doing so expanded the definition to accommodate this type of firearm one that lacks a firing pin to cover objects that appear to be a firearm now the court there was very quick to point out that a statute should be strictly interpreted against the state and cannot be constructed beyond the spirit and the letter of the law given the fact that it's very obvious here that the john wayne replica is an antique firearm is empty firearms are excluded from the baseline armstrong definition than the court there would not have had to reach so far as to broaden that definition but merely would have decided that this firearm in question as a replica is not is an antique and that one cannot be convicted of this the government has pointed out that the firearm in question star in is an awful but as miss lee has already stated operability is not what through comparison to each other we're looking to star in as an example of how anti firearms are taken for granted as being included in the relevant relevant statute to demonstrate that anti firearms are included in every virginia fire statute unless explicitly legislated otherwise by the general assembly it is very clear as judge rushing has stated that the legislative intent is key on how their virginia court contour that they find definition of armstrong to use firearms statutes and that in starr and what mattered was not only that the fire itself presented a danger but also that there was an element of perception to the victim that mattered so in a situation where the general assembly legislate so that someone will not go into a public place and start shooting a firearm it could not have been the intent of the general assembly that the age of the firearm or that it's muzzle loading as opposed to appreciating firearm was somehow decide whether or not it was a punishable act  as previously discussed the there was an anxiety from the government in moncrief that every state law that did not think to explicitly exclude and firearms was then demonstrated over press but we believe that's not the case here in virginia statute exists here where the general assembly at least excluded antique firearms such as felons and possession and one handgun the month purchase limits and those provisions one would not be able and to determine whether that conviction under that particular state statute constitutes a firearm offense under the immigration and nationality act his court employs what's known as the categorical approach and that really is the fundamental issue before this court today is the application of the categorical approach and how this both the supreme court and this court has interpreted interpreted the categorical approach and the government believes that petitioners have a misapprehension of that categorical approach and how it has to be applied in courts of the th circuit specifically the categorical approach work makes a comparison of the elements of the statute of conviction here eighty three as set forth in eight u s c section two hundred and thirty seven to see which is the remove ability statute and this court must make the determination of whether or not that conduct prescribed by virginia fall squarely within the meaning of that generic federal crime and this is how we turn i think to moncrief and i think what we need to do is really get a basic understanding of the moncrief decision i know that there has been discussion here with regard to felony versus misdemeanor application interpretation in moncrief but i think what we have to make clear is the supreme court in moncrief was making the determination not whether that conviction was felonious for purposes of this of the state statute but whether or not it was an aggravated felony under the immigration and nationality act so i would invite this court's attention all honestly to set aside the fact of whether or not this particular conviction is a misdemeanor it is it has no bearing on petitioners remove ability under eight u s c section twelve thousand two hundred and seventy eight to see it's whether the ultimate conclusion or the ultimate issue here is whether or not his conviction for the state sense is a firearm a firearms offense irrespective of whether or not back is interpreted as a felony or misdemeanor i think it's clear from the record that he was charged with a misdemeanor in this particular case but again  that's does been no argument otherwise with regard to whether or not it's interpretation as a misdemeanor or felony by the state court of virginia has any bearing on his removal bilby and that's how moncrief is decidedly different any concept giving rise to a realistic possibility not a theory a theoretical possibility that a state with apply the law enough to hold a conviction based upon such conduct and that was citing to moncrief the supreme court's decision what we're talking about here is the breadth of the statute and whether the general ringback assembly by carving out exceptions for antique firearms in some sections of the written code selling it knows how to issue with regard to the monthly's decision when this course repeated we talked discussed the realistic probability test in terms of a number of different particular statute so i think that the nature of the statute or the nature of that particular offense is irrelevant when you say apples to oranges my mind my response about a city there really must be the realistic possibility test and then going further with respect to eighteen two the dash three hundred and eight when you statute with regard to cheap firearms and although the legislature and other courts have spoken to firearm offenses for purposes of other statutes i think the supreme court has said well approach which i think it's true based on our case law and my understanding of that part and parcel is that it's up to talk to you when we're busy talking about mass to be able to convince that that it's not reasonably probable that someone would be prosecuted in virginia that doesn't somehow shift the burden to the other i understand your question correctly i think we're in a situation here where the bialys interpretation of the categorical approach fell in line with this court's and the supreme court's interpretation of the realistic of the elements of the conviction here and then as as as as we look at the elements of conviction if there's a categorical matched we must now make that determination of whether or not there is a realistic possibility and all i do not take lightly with regard to the pushback w is does the state court prosecute individuals for antique firearms under eighteen point two bashed to a two year old and there's nothing before this court that suggests that there isn't realistic probability that an individual in a public place would be convicted for discharging an antique firearm and that it back in essence is what the argument needs in in moncrief with regard to the league with regard to its language i think it was pretty clear in this court has consistently applied realistic probability tests i mentioned united states versus winston i stated in my brief that we have united states versus diaz united states versus covington united states versus every wouldn't matter how unambiguous the statue would be in your perspective you always have to go to realistic probability in order to position is that it is the board of immigration appeals decision that is before this court and not the immigration judge's decision so there would be no deference no consideration whatsoever it obviously is before the court yes this is jackie judge rushing i'm dropped off the call i don't place everyone i mean an attempt to reconnect judge rushing are you back on the line yes thank you thank you sorry about that judge king i believe immigration appeals decision some can't the immigration judge's decision will be our courts president you would review only the board of immigration appeals decisions obviously or enter our do our briefs supports the board of immigration appeals decision because it's individual would be convicted of a firearms offense by you with regard to the utilization of an in firearm and the state cases starting versus commonwealth millibar says commonwealth and armstrong vs commonwealth number one interpret other statutes as i've indicated previously in this argument and number two do not speak to the team pulling to the two willing to wait for purposes of that particular statute and that is really the becomes the question statute of conviction and the i a e a offensive removes ability has already been rejected by this court in engaged in overbroad conduct we know that they can because the state's highest court has said so and the realistic probability test does not apply moncrief is an announcement of the realistic probability test where there is an ecstatic for the match based on statutory language and the absence of state court decisions  it is the government's burden to show a categorical match between the statute of conviction and the rules of so offense if the type and nature of conviction has no bearing as counsel for the government has explained doesn't change them now says and because there is nothing in the virginia statute eighteen to dash to eighty that indicates that antique firearms are excluded unlike countless other provisions of virginia's state statu that we have offered in our brief there is no categorical match government counsel relied heavily on battle but battle was a case where this court turned to the realistic probability test because it followed the categorical match as the petitioner is advancing here which is to look to the match itself based on statutory language and state court decision and it found a categorical match so then it turned to the realistic probability test battle also undercuts the government's argument that the proof in the realistic heart nd degree murder convictions to satisfy realistic probability this court analyzed the two cases and rejected them because of the elements not because they were under a different statute thank you and i heard that