Conviction for fire arms offenses may lead to deportation from the United States. Two types of offenses may expose aliens to removal. For example, an illicit trafficking as defined in 19 USC 921 is considered an aggravated felony and a firearm offense as defined under INA 237(a)(2)(C) as follows:
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 USC) in violation of any law is deportable.
Convictions for attempt or conspiracy to commit firearms offenses are grounds for removal. When the use of a firearm is an essential element of a crime, the conviction is a firearms offense. However, a sentence enhancement for using a firearm is not a conviction. A conviction for which the statute on which it is based is divisible (possession of a dangerous weapon) is not considered to be a ground for removal unless the record of conviction establishes that the crime involves a firearm.
Two types of firearm convictions are considered aggravated felonies:
- Illicit trafficking in firearms or destructive materials under INA 101(a)(43)(C); and
- Miscellaneous federal firearms and explosive-material offenses under INA 101(a)(43)(E).
To determine whether your offense is an illicit trafficking in firearms under INA 101(a)(43)(C), an immigration attorney will review the definitions of firearms and destructive devices under 18 USC 921(a)(3). For example, a conspiracy to export firearms and ammunition without a license under 22 USC 2778 is an aggrevated felony because the Board of Immigration Appeals’ interpretation defines trafficking in “business and merchant” terms regarding “trading, selling or dealing in goods.” On the other hand, transporting or receiving firearms purchased in another state may not be a trafficking offense and, therefore, not an aggravated felony.
State firearm offenses similar to those on the federal level are considered aggravated felonies. To determine whether a state conviction is an aggravated felony, an experienced immigration lawyer will carefully compare a state statute with a federal one to distinguish the two statutes in order to present arguments that an alien’s conviction is not an aggravated felony.
A lawful, permanent resident convicted of a non-trafficking firearm offense may be eligible for relief from removal under INA 240A(a). Also, if an alien has an American spouse or parent who can file a petition for alien residency, he may be eligible to adjust his status without a waiver. If a firearms conviction is a felony, then an alien needs to seek a waiver under INA 22(h).