-------- However, the Board had determined in Matter of Mendez–Orellana, 25 I. & N. Dec. 254, 255–56 (BIA 2010), that the antique firearm exception was an affirmative defense to removability, and Gil accepted that reading of the statute. Because recourse to a hypothetical affirmative defense (i.e., one not actually advanced in the underlying proceeding) may not necessarily impact a subsequent court's Taylor analysis of a statute of conviction, Gil held that California's definition of a firearm categorically matched the federal definition.

In 2004, § 12001(b) read: “As used in this title, ‘firearm’ means any device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.” However, the Board had determined in Matter of Mendez–Orellana, 25 I. & N. Dec. 254, 255–56 (BIA 2010), that the antique firearm exception was an affirmative defense to removability, and Gil accepted that reading of the statute. Because recourse to a hypothetical affirmative defense (i.e., one not actually advanced in the underlying proceeding) may not necessarily impact a subsequent court's Taylor analysis of a statute of conviction, Gil held that California's definition of a firearm categorically matched the federal definition.

Gil also contends that § 12025(a) is broader than § 1227(a)(2)(C) because § 1227(a)(2)(C) excludes antique firearms from its definition of a firearm and § 12025(a) does not. He cites Matter of Mendez–Orellana, 25 I. & N. Dec. 254 (BIA 2010), where the BIA held that the antique firearm exception is an affirmative defense to removability under § 1227(a)(2)(C). See id. at 255–56.