(D)  Sporting, Recreational, or Cultural Exception for Rifles.  In Lemus-Rodriguez v. Ashcroft, [384] the Seventh Circuit held that firearms convictions involving rifles possessed for sporting, recreational or cultural purposes could not trigger deportation.  The respondent had been convicted in Illinois of attempted reckless discharge of a firearm[385] by firing a rifle into the air on New Year’s Eve.  He had applied for cancellation of removal under INA § 240A(b)(1), but the immigration judge found his conviction disqualified him from that relief because it fell within the firearms ground of deportation.[386]  The Seventh Circuit held that the cultural purpose exception applied not only to destructive device convictions, but also to all firearms convictions.  It went on to hold, however, that respondent’s action of firing into the air on New Year’s Eve did not qualify as a cultural purpose within the meaning of the exception.

 

The definition of “destructive device” in 18 U.S.C. § 921(a) includes “any type of weapon . . . which will . . . expel a projectile,” and therefore includes a rifle, except “a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.” 18 U.S.C. § 924(a)(4).[387]

 

In considering whether the act of shooting a firearm into the air constituted a “cultural purpose,” the court stated: “since the statutory exception for cultural uses cannot be applied without determining the facts underlying the conviction, the general rule [against considering the underlying facts of the offense] cannot apply.”[388]

 

            The court then went on to explain that the cultural purpose exception must apply to firearms convictions, as well as destructive device convictions, in order to avoid rendering the exception entirely superfluous.  The court acknowledged that the cultural purpose exception expressly applied to destructive devices, but not to firearms, and then reasoned:

 

But “destructive device” we know is defined to include a firearm unless it is a rifle used for one of the approved purposes.  It would be passing odd if the government by its choice of whether to describe the firearm as a firearm simpliciter or as a destructive device, to wit, a firearm, could extinguish Congress’s evident intent not to make a subclass of firearms (namely rifles) used for approved purposes, albeit used in a criminal manner, a basis for precluding cancellation of removal.  A cultural purpose for using a rifle, for example to make a war movie or a detective movie, is actually easier to imagine than the use of a number of other destructive devices, such as bombs and machine guns, for similar purposes.[389]

 

In other words, it would render the cultural purpose exception entirely meaningless to apply it to destructive device rifles, but not “firearms,” since the government could then charge every destructive device rifle as a firearm and entirely nullify the cultural purpose exception.  Well established rules of statutory construction do not permit an interpretation that would render statutory language mere surplusage.[390]

 

            The court, however, concluded without citation to authority or much in the way of reasoning that shooting into the air on New Year’s eve was not a cultural purpose.

 

Although there is no relevant legislative history or judicial interpretation, we think it is pretty clear that Lemus-Rodriguez’s use of his rifle was not cultural. Shooting rifles in the air to celebrate a holiday is part of the culture of some other countries, but it is not part of American culture, where for good reasons it is regarded as a dangerously, and criminally, irresponsible use of a firearm. Valerio-Ochoa v. INS, 241 F.3d 1092, 1095 (9th Cir. 2001); People v. Clem, 78 Cal.App.4th 346, 350, 92 Cal.Rptr.2d 727 (Cal.App.2000); People v. Alonzo, 13 Cal.App.4th 535, 539-40, 16 Cal.Rptr.2d 656 (Cal.App.1993).[391]

 

Congress did not expressly limit its exception for cultural purposes to American cultural purposes, and the court offers no reasoned justification for judicially grafting that limitation onto the cultural purpose exception.

 

The other lawful purposes contained in the same portion of the statute should no doubt be treated the same as the cultural purpose addressed in this decision.  Therefore, no noncitizen may be deported, under INA § 237(a)(2)(C), on account of any offense involving “a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.”[392]  The elements of this exception therefore apply to a firearms or destructive device conviction involving:

 

(1)   a rifle

(2)   which the owner

(3)   intends to use solely for

(4)   sporting, recreational or cultural purposes.

 

This exception applies both to deportable firearms convictions, and to deportable aggravated felony firearms trafficking convictions.  The Seventh Circuit decision was based on the firearms conviction ground of deportation.[393]  The statutory exception, however, also applies to an aggravated felony conviction for firearms trafficking,[394] since that definition employs the same destructive device definition containing this exception. 

[384] Lemus-Rodriguez v. Ashcroft, 350 F.3d 652 (7th Cir. Nov. 26, 2003).

[385] 720 ILCS § 5/24-1.5.

[386] INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).

[387] Lemus-Rodriguez v. Ashcroft, 350 F.3d at 653-54 (7th Cir. 2003).

[388] Id. at 655, citing United States v. Londono-Quintero, 289 F.3d 147, 151-52 (1st Cir. 2002); cf. United States v. Shannon, 110 F.3d 382, 384-85 (7th Cir. 1997) (en banc).

[389] Lemus-Rodriguez v. Ashcroft, 350 F.3d at 655 (7th Cir. 2003).

[390] United States v. Wenner, 351 F.3d 969 (9th Cir. Dec. 12, 2003).

[391] Lemus-Rodriguez v. Ashcroft, 350 F.3d at 655-56 (7th Cir. 2003) (emphasis in original).

[392] 18 U.S.C. § 924(a)(4).

[393] INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C). 

[394] INA § 101(a)(43)(C), 8 U.S.C. § 1101(a)(43)(C).

Third Circuit

AGGRAVATED FELONY " FIREARMS AND DESTRUCTIVE DEVICES " ARSON " FEDERAL JURISDICTIONAL ELEMENT
Bautista v. Atty Gen. of the U.S., 744 F.3d 54 (3d Cir. Feb. 28, 2014) (New York conviction of attempted arson in the third degree, in violation of Penal Law 110 and 150.10, did not categorically constitute a match for the elements of 18 U.S.C. 844(i), and is therefore not an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), because the New York arson statute does not require the federal jurisdictional element that the object of the arson be used in interstate commerce, which the Supreme Court has found to be a critical and substantive element of that arson offense). The court reasoned as follows: We must assume that Congress was aware of the limits imposed by the Commerce Clause on the reach of the statutes it passes and that it restricted the breadth of 101(a)(43)(E) with the substantive constraints of the included jurisdictional elements in mind. See United States v. Am. Bldg. Maint. Indus., 422 U.S. 271, 279"80, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975) (comparing Congress's use of in commerce versus affected commerce to show that Congress is aware of its Commerce Clause power and the extent to which it asserts that power in drafting statutes). We cannot undermine the categorical approach and Congress's deliberate choice to include 844(i), rather than generic arson, in 101(a)(43)(E)(i). Further, were we to ignore the jurisdictional element in our categorical approach to 844(i), as the BIA has here, we would be characterizing a state conviction for arson of the intrastate house in Jones as an aggravated felony described in 844(i), when the Supreme Court clearly excised the arson of such intrastate objects from the scope of that federal statute. Id. at 64-66.

AGGRAVATED FELONY " FIREARMS AND DESTRUCTIVE DEVICES " ARSON " FEDERAL JURISDICTIONAL ELEMENT
Bautista v. Atty Gen. of the U.S., 744 F.3d 54 (3d Cir. Feb. 28, 2014) (New York conviction of attempted arson in the third degree, in violation of Penal Law 110 and 150.10, did not categorically constitute a match for the elements of 18 U.S.C. 844(i), and is therefore not an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), because the New York arson statute does not require the federal jurisdictional element that the object of the arson be used in interstate commerce, which the Supreme Court has found to be a critical and substantive element of that arson offense). The court reasoned as follows: We must assume that Congress was aware of the limits imposed by the Commerce Clause on the reach of the statutes it passes and that it restricted the breadth of 101(a)(43)(E) with the substantive constraints of the included jurisdictional elements in mind. See United States v. Am. Bldg. Maint. Indus., 422 U.S. 271, 279"80, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975) (comparing Congress's use of in commerce versus affected commerce to show that Congress is aware of its Commerce Clause power and the extent to which it asserts that power in drafting statutes). We cannot undermine the categorical approach and Congress's deliberate choice to include 844(i), rather than generic arson, in 101(a)(43)(E)(i). Further, were we to ignore the jurisdictional element in our categorical approach to 844(i), as the BIA has here, we would be characterizing a state conviction for arson of the intrastate house in Jones as an aggravated felony described in 844(i), when the Supreme Court clearly excised the arson of such intrastate objects from the scope of that federal statute. Id. at 64-66.

AGGRAVATED FELONY - FIREARMS TRAFFICKING
Joseph v. Attorney General of U.S., ___ F.3d ___, 2006 WL 2796256 (3d Cir. Oct. 2, 2006) (federal conviction of importing a firearm into a state, in violation of 18 U.S.C. 922(a)(3), does not constitute an "aggravated felony" of "illicit trafficking in firearms" under INA 101(a)(43)(C) and 237(a)(2)(A)(iii), 8 U.S.C. 1101(a)(43)(C), 1227(a)(2)(A)(iii), because 922(a)(3) does not include a "trafficking element").

AGGRAVATED FELONY - FIREARMS TRAFFICKING - TRANSPORTATION ACROSS STATE LINES
Joseph v. United States Atty Gen., 465 F.3d 123 (3d Cir. Oct. 2, 2006) (federal conviction of 18 U.S.C. 922(a)(3) and 924(a)(1)(D) [transporting firearm across state lines] is not an aggravated felony firearms trafficking offense under INA 101(a)(43)(C) for immigration purposes because the statute does not at a minimum require "trafficking" in firearms; the offense may be committed by bringing ones own firearm across state lines).

AGGRAVATED FELONY - FIREARMS TRAFFICKING - TRANSPORTATION ACROSS STATE LINES
Joseph v. United States Atty Gen., 465 F.3d 123 (3d Cir. Oct. 2, 2006) (federal conviction of 18 U.S.C. 922(a)(3) and 924(a)(1)(D) [transporting firearm across state lines] is not an aggravated felony firearms trafficking offense under INA 101(a)(43)(C) for immigration purposes because the statute does not at a minimum require "trafficking" in firearms; the offense may be committed by bringing ones own firearm across state lines).

Ninth Circuit

AGGRAVATED FELONIES " FIREARMS OFFENSES " ANTIQUE FIREARMS
United States v. Aguilera-Rios, ___ F.3d ___, 2014 WL 2723766 (9th Cir. Jun. 17, 2014) (California Penal Code 12021(c)(1), current Penal Code 29800, is not a categorical aggravated felony firearms offense, since the statute lacks an antique firearms exception); explicitly partially overruling Gil v. Holder, 651 F.3d 1000, 1005"06 (9th Cir. 2011), and implicitly partially overruling Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010).