Gun Conviction and Immigration Law

 

A gun conviction can carry extremely severe immigration consequences for persons that are not United States citizens.  INA section 237(a)(2)(C) makes convictions under federal, state, and local laws for firearms offenses deportable.  The list of offenses that fall under this provision is very broad.  Even very minor firearm convictions, such as negligent discharge of a gun, brandishing a pistol, unlawful transport of a firearm, etc., can all potentially lead to deportation.  Many firearms offenses (not all) are considered to be aggravated felonies that can lead to deportability, inadmissibility, and denial of adjustment of status.  One such offense that is noteworthy is the possession of a firearm by an illegal alien or an alien in non-immigration status (see 18 USC section 922(g)(5).  Also, if a sentence of 1 year or more is imposed on a crime of violence conviction, it is also considered to be an aggravated felony (see INA section 101(a)(43)(F).

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Is it ever legal  for aliens to possess firearms?  In some limited cases, yes.  An alien who has been lawfully admitted to the United States under a non-immigration visa who is admitted to the United States for for lawful hunting or sporting purposes, or is in possession of a hunting license or permit lawfully issued in the United States may possess lawful firearms under 18 USC section 922(y)(2)(A).  Lawful Permanent Residents (green card holders) can also possess firearms as long as they follow the applicable state, federal, and local laws to do so.  Even an alien or green card holder that lawfully possesses or uses a firearm may run into trouble with their immigration status for firearms related violations.  It is advisable that an alien or green card holder who wants to possess or use firearms consult with a lawyer, and receive proper training, so he or she specifically understand what the law requires.  Again, even a relatively minor gun violation can result in catastrophic immigration consequences.

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Deportability for a firearms offense will trigger mandatory detention.  This means that a non citizen who is in immigration proceedings for a firearm related conviction will be held in immigration custody while removal proceedings are pending (see INA section 236(c)(1)(B).  An immigration judge will be without jurisdiction to set a bond when mandatory detention applies.

Any non-citizen charged with an offense related in any way to firearms should retain an experienced criminal defense lawyer.  The experienced criminal defense lawyer will be able to analyze the case for weaknesses.  Weaknesses may include (but is not limited to): reasonable doubt; the stop of the vehicle was unlawful; the search and seizure that occurred was not constitutional; mistaken identity; etc.  Alternatively, the experienced criminal defense lawyer may be able to negotiate a plea bargain to an offense not related to firearms, or obtain a diversionary program (that does not require a plea or admission of guilt) to try and avoid immigration related consequences.   Be forewarned – many prosecutors have policy related issues concerning gun cases and may not be willing to negotiate.  A non-citizen with a gun related case should never choose to self represent. The experienced criminal defense lawyer should also work hand in hand with an experienced immigration lawyer (if an immigration lawyer is retained by the non citizen) to develop a strategy to properly defend or resolve the firearm allegation.

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If a conviction to a gun offense occurs, what should the non citizen do?  There may be immigration related defenses to prevent deportation.  For example, the experienced immigration lawyer may challenge whether or not a “firearm” was actually involved.  Federally, 18 USC section 921(a)(3) contains a list of what constitutes a firearm.  The experienced immigration lawyer may also challenge whether or not an offense that may appear to be a firearms offense is considered as a firearms offense for immigration purposes.  For example, a statute for a gun law may include other offenses such as knife possession.  If the statute is not divisible under the test developed by the United States Supreme Court (the Categorical Approach), or if it is divisible but the government is unable to prove from the conviction record that the offense actually involved a firearm (the Modified Categorical Approach), the experienced immigration lawyer may be able to prevent the deportation from being ordered.   This test developed by the United States Supreme Court does not involve a consideration of the underlying facts of the case, but an analysis of applicable statutes, and in some cases certain records from the court file.  Removal defense when it comes to firearms is a very complex endeavor for an immigration lawyer.  Needless to say, an removal defense should be presented by an experienced immigration lawyer.

 

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It is also important to remember that immigration law is constantly changing, and is subject to reinterpretation by the federal courts, Board of Immigration Appeals, or immigration courts.  There is also a risk that an immigration officer will not follow or understand the applicable law.

This blog is not intended to be a substitute or replacement for seeking the help of an experienced criminal lawyer and/or immigration lawyer.  The information in this blog may after publication become inapplicable or inaccurate due to changes in the applicable laws.

Every criminal and immigration case is unique, and needs to be analyzed and defended individually.  The best decision that you can make, if you are charged with any criminal offense or if you have any potential immigration issue, is to immediately retain an experienced legal professional to handle your case.

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