United States Court of Appeals For the First Circuit No. 22-1383 GERARDO A. PORTILLO, Petitioner, v. US DEPARTMENT OF HOMELAND SECURITY, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Montecalvo and Thompson, Circuit Judges, and Carreño-Coll, District Judge. Jennifer Klein, with whom Committee for Public Counsel Services, Susan B. Church, Demissie & Church, and Kathleen M. Gillespie, were on brief, for petitioner. Alexander J. Lutz, Trial Attorney, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Jennifer J. Keeney, Assistant Director, Office of Immigration Litigation, were on brief, for respondent. May 30, 2023 Of the District of Puerto Rico, sitting by designation. MONTECALVO, Circuit Judge. Gerardo A. Portillo petitions for review of a decision of the Board of Immigration Appeals ("BIA") affirming his order of removal and denying his application for adjustment of status. Because we find that a conviction under Massachusetts General Laws ("MGL") ch. 269, § 11C is not categorically a firearm offense as defined by 8 U.S.C. § 1227(a)(2)(C), we grant the petition for review, vacate the decision below, and remand for further proceedings. I. Background Petitioner Portillo, a citizen of El Salvador, entered the United States on a B-2 temporary visitor visa when he was less than a year old. After more than a decade residing in the United States, in June 2003, he adjusted his status to lawful permanent resident. On July 9, 2014, Portillo pleaded guilty in Massachusetts state court to assault and battery upon a child causing bodily injury, in violation of MGL ch. 265, § 13J(b); three counts of possession of a firearm without a firearm identification ("FID") card, in violation of MGL ch. 269, § 10(h); and -- of particular relevance here -- defacing or receiving a firearm with a defaced serial number, in violation of MGL ch. 269, § 11C. MGL ch. 269, § 11C provides: Whoever, by himself or another, removes, defaces, alters, obliterates or mutilates in any manner the serial number or identification - 2 - number of a firearm, or in any way participates therein, and whoever receives a firearm with knowledge that its serial number or identification number has been removed, defaced, altered, obliterated or mutilated in any manner, shall be punished by a fine of not more than two hundred dollars or by imprisonment for not less than one month nor more than two and one half years. More than two and a half years after Portillo's conviction, on April 4, 2017, the Department of Homeland Security ("DHS") initiated removal proceedings against Portillo.1 The Notice to Appear charged Portillo with removal pursuant to 8 U.S.C. § 1227(a)(2)(C) based solely on his Massachusetts state court conviction for "[p]ossession of a [f]irearm with [a] [d]efaced [n]umber, in violation of [MGL ch. 269, § 11C]." It made no mention of Portillo's other convictions. The Immigration and Nationality Act ("INA") permits the removal of a noncitizen convicted of "[c]ertain firearm offenses." 8 U.S.C. § …
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