Matter of Mendez-Orellana (6/9)
June 10, 2010
**Offense involving firearm, antique firearms exception**
The antique firearm exception in 18 U.S.C. § 921(a)(3) (2006) is an affirmative defense that must be sufficiently raised by a respondent charged as removable under INA section 237(a)(2)(C), as an alien who has been convicted of an offense involving a firearm. Where DHS has presented evidence that a respondent has been convicted of an offense involving a firearm, it has met its burden of presenting clear and convincing evidence of deportability, and the burden then shifts to the respondent to show that the weapon was, in fact, antique. Here, DHS submitted the respondent’s record of conviction, including the felony complaint and his guilty plea, which indicate that he was convicted of carrying a loaded “.25 caliber Colt semi-automatic pistol.” DHS therefore met its initial burden of demonstrating that the respondent’s California convictions involved weapons that qualify as “firearms”. The respondent did not present any evidence to establish that he was convicted of carrying an antique firearm.
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