The “realistic probability” test has no role to play in the “categorical approach” when a state statute on its face is broader than the federal definition.

Here’s an important decision you may have missed because it arises in the context of an immigration proceeding rather than a criminal case. In Williams v. Barr, No. 18-2535 (2d Cir. May 27, 2020) (Jacobs, Carney, and Bianco), the Circuit clarified that, under the “categorical approach” for determining whether a state statute criminalizes more conduct than the relevant federal counterpart, the “realistic probability” test has limited application. Specifically, the test does not apply when the text of the statute itself gives it a broader reach than the generic federal definition. And, because the “categorical approach” applies in both immigration cases and criminal cases, this holding should be helpful to many criminal defendants.

Williams fought removal from the United States based on his Connecticut state conviction for unlawful carrying of a pistol or revolver. The Second Circuit agreed with him that, under the “categorical approach,” the state statute criminalized more conduct than is described by the federal Immigration and Nationality Act as a “firearms offense,” and therefore could not serve as a basis for removal.

While the Circuit’s comparison of the state and federal statutes is interesting (and worth reading), the more significant portion of Williams may be the Court’s holding regarding the “reasonable probability” test. That test applies when the federal and state statutes appear from their texts alone to be a categorical match, but their enforcement may diverge in practice. To demonstrate such a mismatch “requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” But Williams holds that this test does not apply “when the statute of conviction reaches beyond the generic federal definition.” In other words, the “realistic probability” test does not apply when the statutory language itself creates the realistic probability that a state would apply the statute beyond the generic definition.

Thus, in Williams’s case, because the plain language of the Connecticut firearms statute criminalized some conduct not covered by the federal definition of a “firearms offense,” he did not have to show that Connecticut actually applied its law more broadly than the federal law. Rather, the textual mismatch was enough under the “categorical approach” to establish that his offense did not make him removable.