Aspectos teóricos

A noncitizen with lawful status—or who was lawfully admitted to the U.S. —is deportable if, at any time after entering the United States, he is “Convicted under any law of: purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry in violation of any law, any weapon, part or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code)....”185

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However, noncitizens subject to expedited removal pursuant to 8 USC § 1228(b) because their firearms offense constitutes an aggravated felony will be procedurally barred from applying for LPR status (or virtually all other forms of relief from removal) even if they are statutorily eligible. See 8 USC § 1228(b)(5); INA §238(b)(5).

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8 USC § 1227(a)(2)(C); INA § 237(a)(2)(C). (Before April 1, 1997, this was 8 USC § 1251(a)(2)(C); INA § 241(a)(2)(C)).

1. The Firearms Ground of Deportation

This firearms provision186 _{is a ground of deportation and, as such, applies} only to noncitizens who are here in lawful status (e.g., greencard holders, student visas) or who were lawfully admitted (regardless of whether their lawful status has since expired).

Note: A conviction for attempt or conspiracy to commit any of the listed offenses will constitute a deportable offense. Thus, these offenses are not safe alternatives.

There is no corresponding ground of inadmissibility for firearms offenses contained at 8 USC 1182(A)(2). Thus, firearms offenses do not trigger a statutory ground of removal for persons who entered the U.S. without ever being legally admitted, and have never obtained lawful status. Nor do they trigger most statutory bars to

obtaining immigration benefits. However, they might separately constitute crimes of moral turpitude or aggravated felonies (see below, Part B: Firearms That Are

Aggravated Felonies), that will trigger removal and/or statutory bars to obtaining immigration benefits.

As highlighted below, criminal defense counsel should assume that the firearms deportation ground includes convictions of “pure” firearms offenses as well as weapons offenses where use of a weapon is an element of the statute and the record of conviction identifies the weapon in the case to be a firearm (e.g., a conviction under RCW 9A.41.021(c) for assault in the second degree with a deadly weapon where the record of conviction indicates the weapon was a firearm).187

2. Definition of Firearms and Destructive Devices188

Under 18 USC § 921(a), “firearm” includes guns or firearms, frames and receivers, and silencers.189 “Destructive device” includes objects such as bombs, grenades, rockets or similar devices, or parts used to convert or create

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8 USC § 1227(a)(2)(C); INA § 237(a)(2)(C). “Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law is deportable.”

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See, e.g., Valerio-Ochoa v. I&S, 241 F.3d 1092 (9th Cir. 2001) (discharging a firearm negligently in violation of Calif. P.C. §246.3 is deportable firearms offense).

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For a thorough analysis of the definition of firearms and destructive devices see N. Tooby, Criminal Defense of Immigrants § 4.39 (3d ed. 2003)

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The federal statutory definition of firearms contains an exception for antique firearms. The Washington definitional statute at RCW 9.41.010 defines antique firearms but does not create any similar exception. Therefore, it is arguable that, unless DHS can show by clear and convincing evidence that the firearm at issue was not an antique, a Washington conviction relating to firearms should not be considered a basis of deportation or aggravated felony absent clarification that an antique firearm was not involved. This is a risky proposition and should not be relied upon by defense counsel in analyzing a criminal case.

Chapter 7: Firearms and Other Weapons Offenses 75 firearms or destructive devices.190 Shotguns and other guns used for sport do fall under the firearms definition (although §921(a)(4)’s definition of destructive devices excludes a “sporting” shotgun or shell, or “a rifle which the owner intends to use solely fo rsporting, recreational or cultural purposes”). Note that the term “firearm” does not include an antique firearm as defined at 18 USC §921(a)(16).

Given the breath of both of these definitional provisions, defense counsel should assume that the firearm or “destructive device” will fall within them, unless counsel specifically determines that the firearm or device at issue under the Washington Statutes is not listed under the federal statute at 18 USC §921(a). Note that such a determination, although difficult to come by, would render the noncitizen not

deportable under this provision. In such an instance, defense counsel must ensure that defendant’s plea statement clearly reflects a firearm or destructive device that is not listed under the federal statutes.

Immigration Defense Argument: Antique Firearms—Immigration counsel

should consult K. Brady, California Criminal Law & Immigration, at §6.1(H), and N. Toby, Criminal Defense of Immigrants, at §4.40(1) for more information on antique firearms. See Appendix C: Additional Resources.

3. Sentence Length for Firearms Offense Irrelevant

The firearms ground of deportation does not reference any standard maximum or minimum sentence length. Thus, the amount of sentence imposed in relation to a firearms offense is irrelevant. If it constitutes a firearms offense under the immigration statute, it will trigger deportation regardless of the sentence imposed.