October 4, 2017
for Review of an Order of the Board of Immigration Appeals.
No. A017 046 772.
Bauer, Easterbrook, and Manion, Circuit Judges.
Easterbrook, Circuit Judge.
alien who has been convicted of an "aggravated
felony" as defined in 8 U.S.C. §1101(a)(43) is
removable from the United States. Section 1101(a)(43)(E)
specifies that any violation of 18 U.S.C. §922(g)(1)
counts as an aggravated felony. Section 922(g)(1) in turn
bars anyone who has been convicted of a felony from
possessing a firearm. The Board of Immigration Appeals
concluded that these statutes require Delfino
Rodriguez-Contreras, a citizen of Mexico who had been
admitted for permanent residence, to leave the United States
without any possibility of discretionary relief from removal.
See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229b(a)(3).
having been convicted of a felony in Illinois,
Rodri-guez-Contreras was found in possession of a weapon and
convicted of violating 720 ILCS 5/24-1.1(a). He spent 30
months in prison for that crime. If the elements of the state
offense match the elements of §922(g)(1), then
Rodriguez-Contreras must be removed. The question is not what
he did in fact but what elements must be established to
secure a conviction-in other words, whether the state statute
"categorically fits within the 'generic' federal
definition of a corresponding aggravated felony."
Esquivel-Quintana v. Sessions, 137 S.Ct. 1562, 1568
(2017), quoting from Moncrieffe v. Holder, 569 U.S.
184, 190 (2013).
contends that 720 ILCS 5/24-1.1(a) does not match the federal
crime because the state statute bars felons from possessing
pneumatic weapons as well as those that use explosives. The
Board did not address this argument. Instead it stated that
Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir.
2008), and Estrada-Hernandez v. Lynch, 819 F.3d 324
(7th Cir. 2016), have held that a violation of 720 ILCS
5/24-1.1(a) is an aggravated felony, so there was no work for
the Board to do.
Board's treatment of our decisions assumes that to
address one legal argument is to address all possible legal
arguments. Negrete-Rodriguez argued that the Illinois and
national felon-in-possession crimes do not match because the
state statute omits the interstate-commerce element that
§922(g)(1) contains. We rejected that contention and
held that courts consider statutes' substantive elements
rather than provisions that allocate prosecutorial authority.
518 F.3d at 501-03. See also Torres v. Lynch, 136
S.Ct. 1619 (2016) (a state crime covered by §1101(a)(43)
is an aggravated felony when it matches the federal crime in
all but the commerce element). Our decision in
Negrete-Rodriguez did not say whether the
substantive elements of the state and federal statutes match,
because the alien had not presented an argument on the
subject. Nor did the alien in Estrada-Hernandez. How
the substantive elements of 720 ILCS 5/24-1.1(a) mesh with
those of §922(g)(1) has never been resolved by this
court. Now is the time.
922(g)(1) prohibits the possession of a "firearm"
by someone who has been convicted of a felony. The word
"firearm" is defined in 18 U.S.C. §921(a)(3)
as "any weapon ... designed to ... expel a projectile by
the action of an explosive". Any violent release of gas
produces an "explosion" in common usage; think of a
volcano, which propels tons of rock miles into the air when
gas dissolved in magma comes out of solution and creates
powerful pressure. But §921(a)(3) does not ask whether
an explosion pushes the projectile out of the weapon; it asks
whether an explosive does the work. Compressed air
is not an explosive, which means that pneumatic weapons are
not "firearms" under federal law. See, e.g.,
United States v. Castillo-Rivera, 853 F.3d 218, 225
(5th Cir. 2017) (en banc); United States v. Crooker,
608 F.3d 94, 96 (1st Cir. 2010); Bureau of Alcohol, Tobacco,
Firearms and Explosives Ruling 2005-4.
law, by contrast, defines a firearm as "any device, by
whatever name known, which is designed to expel a pro-
jectile or projectiles by the action of an explosion,
expansion of gas or escape of gas" with exceptions,
including one for pneumatic guns that have a muzzle velocity
less than 700 feet per second. 430 ILCS 65/1.1. The Attorney
General's brief concedes that this definition makes the
state law broader than the federal law but contends that it
is farfetched to think that possessors of air rifles would be
prosecuted in Illinois. In the Attorney General's view
the state and federal statutes match as a practical matter
despite the linguistic difference. Yet a recent decision by
the Appellate Court of Illinois shows that felons are indeed
prosecuted for and convicted of possessing air rifles.
People v. Thompson, 2017 IL App (3d) 160503 (Sept.
weapons can be as deadly as those that use explosives to
generate the gas that propels the bullet; a pneumatic
mechanism can give a bullet quite a kick. Sherlock Holmes
called Sebastian Moran the second most dangerous man in
London (behind only Moriarty) because he killed at a distance
with an air rifle, a quiet weapon that allowed him to avoid
detection. See A. Conan Doyle, The Adventure of the Empty
House, in The Return of Sherlock Holmes (1905).
It does not surprise us that Illinois prosecutes felons who
possess such weapons. This means that the state statute is
indeed broader than its federal counterpart and, under the
reasoning of Esquivel-Quintana and its predecessors,
cannot be treated as an "aggravated felony."
immigration judge supported her decision with a fallback
argument: that the Illinois statute is "divisible"
and permits immigration officials (and judges) to look at the
charging papers and other documents to see which statutory
provision was involved. The IJ treated 720 ILCS 5/24-1.1(a)
as creating distinct offenses: possession of a (federally
defined) firearm by a felon, and possession of an air rifle
by a felon. The IJ also found that the weapon that led to
Rodri-guez-Contreras's conviction used explosives; she
concluded that this marks the particular crime
Rodriguez-Contreras committed as an aggravated felony.
(Rodriguez-Contreras observes that Smith & Wesson, the
manufacturer of his weapon, made some .22 caliber air
pistols, but he does not contend that his .22 caliber pistol
Attorney General's brief in this court does not defend
the IJ's divisibility ruling. Mathis v. United
States, 136 S.Ct. 2243 (2016), distinguishes between
multiple crimes codified under a single heading
(divisible) and multiple ways of committing a single
crime (not divisible). Illinois has established only a single
crime of weapon possession by a felon. In Illinois there are
multiple ways of committing that crime (possessing a powerful
air rifle is one, possessing a weapon that uses explosives is
another), but a definitional clause does not create a
follows that a violation of 720 ILCS 5/24-1.1(a) is not an
"aggravated felony" and that federal law does not
foreclose Rodriguez-Contreras's ability to receive
discretionary relief from removal. In exercising discretion
the Board and IJ are free to consider the fact that
Rodriguez-Contreras possessed a weapon that comes within the
scope of a federal prohibition as well as a state
prohibition. Moncrieffe, 569 U.S. at 204. All our
decision establishes is ...