BIA

AGGRAVATED FELONY " FIREARMS OFFENSES " UNLAWFUL POSSESSION OF AMMUNITION BY CONVICTED FELON " RELATING TO
Matter of Oppedisano, 26 I. & N. Dec. 202 (BIA 2013) (federal conviction of unlawful possession of ammunition by a convicted felon, in violation of 18 U.S.C. 922(g), is an aggravated felony for immigration purposes; the relating to language used in the Act is does not limit the scope of the statute). http://www.justice.gov/eoir/vll/intdec/vol26/3793.pdf

AGGRAVATED FELONY " EXPLOSIVES OFFENSES " ARSON
Matter of Bautista, 25 I&N Dec. 616 (BIA 2011) (New York conviction of attempted arson in the third degree, in violation of New York Penal Law 110, 150.10, is an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), relating to explosives material offenses, even though the state crime lacks the jurisdictional element in the applicable federal arson offense); following Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002).

AGGRAVATED FELONY " EXPLOSIVES OFFENSE
Matter of Bautista, 25 I&N Dec. 616, 620 (BIA 2011) (New York conviction of attempted arson, in violation of New York Penal Code 110 and 150.10, categorically constituted an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i); state conviction need not contain federal jurisdictional element to be an aggravated felony); following Matter of Vasquez-Muniz, 23 I&N Dec. 207, 212 (BIA 2002) (it must render irrelevant any purely jurisdictional element appearing in the crimes enumerated.).

FIREARMS OFFENSE - POSSESSION OF FIREARM BY FELON
Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA Jan. 15, 2002) (California conviction of possession of a firearm by a felon in violation of California Penal Code § 12021(a)(l) is an aggravated felony under INA § 101(a)(43)(E)(ii), 8 U.S.C. 1101(a)(43)(E)(ii) because it is "described in" 18 U.S.C. § 922(g)(l), even though the state statute lacks the jurisdictional element required by the federal statute).

Second Circuit

AGGRAVATED FELONIES " FIREARMS OFFENSES " POSSESSION OF AMMUNITION
Oppedisano v. Holder, 769 F.3d 147 (2d Cir. Oct. 8, 2014) (federal conviction for the unlawful possession of ammunition, under 18 U.S.C. 922(g)(1), qualifies as an aggravated felony under INA 101(a)(43)(E)(ii), 8 U.S.C. 1101(a)(43)(E)(ii)).

Fourth Circuit

AGGRAVATED FELONY " FIREARMS OFFENSES " FIRST-DEGREE ARSON
Espinal-Andrades v. Holder, ___ F.3d ___, 2015 WL 268528 (4th Cir. Jan. 22, 2015) (Maryland conviction of first-degree arson, in violation of Md.Code Ann., Crim. Law 6"102, qualified as an aggravated felony under INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E), because the elements are identical to the elements of the federal arson statute, 18 U.S.C. 844(i), which is listed under this aggravated felony definition, except for the interstate commerce element, which Congress did not intend to bar inclusion of a state offense in the aggravated felony definition); rejecting contrary analysis of Bautista v. Attorney Gen. of U.S., 744 F.3d 54 (3d Cir. 2014).

Fifth Circuit

AGGRAVATED FELONY " FIREARMS " FRAUDLENT PURCHASE OF FIREARMS FOR EXPORT
Franco-Casasola v. Holder, __ F.3d __ (5th Cir. Oct. 23, 2014) (federal conviction for violation of 18 U.S.C. 554(a), fraudulent purchase of firearms for export, is a divisible statute, as a target offense where the indictment must specify, and the prosecutor must prove, the underlying offense; record established aggravated felony firearms trafficking offense since the indictment specified a firearms trafficking offense).

AGGRAVATED FELONY - FIREARMS - INTERSTATE COMMERCE ELEMENT
Hernandez v. Holder, __ F.3d __ (5th Cir. Dec. 30, 2009) (Texas conviction for violation of Texas Penal Code section 46.04(a), possession of a firearm by a felon, is an aggravated felony firearms offense; it is not necessary for a state offense to contain a federal jurisdictional element to be an offense "described in" 18 U.S.C. section 922(g)(1), and qualify as an aggravated felony under INA 101(a)(43)(E)), following Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002).

FIREARM OFFENSE - POSSESSION OF UNREGISTERED FIREARM
United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir. Apr. 3, 2003) (Texas conviction for possession of a prohibited weapon a short-barrel firearm in violation of Tex. Penal Code § 46.05, constituted a listed aggravated felony firearms offense under INA § 101(a)(43)(E)(iii), 8 U.S.C. § 1101(a)(43)(E)(iii), as an "offense described in . . . [26 U.S.C. § ] 5861 . . . (relating to firearms offenses)," for purposes of a 16-level sentence enhancement for illegal re-entry pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(iii), since there is no element or substantial risk that force will be used in the commission of the offense).

FIREARMS OFFENSE - POSSESSION OF FIREARM BY ALIEN
United States v. Reyna-Espinosa, 117 F.3d 826 (5th Cir. July 11, 1997) (federal conviction for unlawful possession of a firearm by an alien under 18 U.S.C. § 922(g)(5) does not constitute an "aggravated felony" for purposes of increasing the defendants offense level for illegal re-entry by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(2), although it does for immigration purposes).

Seventh Circuit

AGGRAVATED FELONY " FIREARMS OFFENSES " POSSESSION OF A WEAPON
(Illinois conviction for being in possession of a weapon in violation of 720 ILCS 5/24"1.1(a) did not qualify as an aggravated felony, because Illinoiss definition of a firearm is broader than its federal counterpart because it includes pneumatic weapons). NOTE: Compressed air is not an explosive, which means that pneumatic weapons are not firearms under federal law. See, e.g., United States v. Castillo-Rivera, 853 F.3d 218, 225 (5th Cir. 2017) (en banc); United States v. Crooker, 608 F.3d 94, 96 (1st Cir. 2010). Rodriguez-Contreras v. Sessions, 873 F.3d 579, 580 (Cir. 2017).

POST CON RELIEF " GROUNDS " INSUFFICIENCY OF EVIDENCE
United States v. Griffin, ___ F.3d ___, ___ (7th Cir., Jul. 5, 2012) (reversing federal conviction for felon in possession of firearms where there was no evidence defendant intended to exercise any control over his father's firearms in his parents' home where he went to live after being released from prison: a defendant's strong connection to the residence alone does not suffice to establish the nexus required to prove his constructive possession of a gun found in the residence.").

AGGRAVATED FELONY - FIREARMS - POSSESSION BY FELON
Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. Mar. 3, 2008) (Illinois conviction of unlawful possession of a weapon by a felon, in violation of 720 ILCS 5/24-1.1(a), constituted an aggravated felony under INA 101(a)(43)(E)(ii), 8 U.S.C. 1101(a)(43)(E)(ii) ("[t]he term aggravated felony means ... an offense described in ... section 922(g)(1) ... of Title 18 (relating to firearms offenses).", despite the fact that the Illinois offense lacks the interstate commerce element of the analogous federal offense), following United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001) (sentencing Guidelines context).

Eighth Circuit

AGGRAVATED FELONY - FIREARMS OFFENSE - CLAIM OF SPORTING USE EXCEPTION REJECTED
Alvarado v. Gonzales, 484 F.3d 535 (8th Cir. April 17, 2007) (per curiam) (federal conviction of possession of firearms and ammunition by an unlawful user of a controlled substance, under 18 U.S.C. 922(g)(3), constituted aggravated felony firearms conviction, for purposes of removal and cancellation of removal, despite the alleged sporting purpose of the guns at issue).

Ninth Circuit

AGGRAVATED FELONY " STATE CONVICTION " FEDERAL JURISDICTIONAL ELEMENT AGGRAVATED FELONY " ARSON
Sandoval-Gomez v. Holder, ___ F.3d ___, 2014 WL 4668962 (9th Cir. Sept. 22, 2014) (California conviction of attempted arson, in violation of Penal Code 455, constituted aggravated felony arson under, INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E) under the modified categorical approach; the federal element found in section 844 is a purely jurisdictional element which must be disregarded in determining whether the state law qualifies as an aggravated felony under federal law), vacated 771 F.3d 511 (9th Cir. Oct. 24, 2014).

AGGRAVATED FELONY " FIREARMS OFFENSES " ANTIQUE FIREARMS DEFENSE
United States v. Hernandez, 769 F.3d 1059 (9th Cir. Oct. 20, 2014) (per curiam) (California conviction for being a felon in possession of a firearm under California Penal Code 12021(a)(1), did not categorically qualify as a listed firearms aggravated felony, under INA 101(a)(43)(E), 8 U.S.C. 101(a)(43)(E), since the state did not have an exception for antique firearms, as federal law did, and the state in fact prosecuted defendants under this statute for being in possession of antique firearms, and the state statutory definition of firearm is not divisible, so resort to the modified categorical analysis or record of conviction is prohibited).

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).

AGGRAVATED FELONY - FIREARMS - POSSESSION OF FIREARM
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) (following United States v. Castillo-Rivera in the immigration context); see United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. Mar. 26, 2001), cert. denied, 122 S.Ct. 294 (2001) (California conviction for violating California Penal Code 12021(a), felon in possession of a firearm, constitutes an aggravated felony under INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E), because it is "an offense described in" 18 U.S.C. 922(g)(1), the federal felon-in-possession statute, even though the state crime, unlike 922(g), does not include any interstate or foreign commerce federal jurisdictional element, and therefore supports sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A) for illegal re-entry conviction of violating INA 176(a), 8 U.S.C. 1326(a)).

AGGRAVATED FELONY - FIREARMS OFFENSES - FELON IN POSSESSION OF FIREARM
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) (following United States v. Castillo-Rivera in the immigration context); see United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. Mar. 26, 2001), cert. denied, 122 S.Ct. 294 (2001) (California conviction for violating California Penal Code 12021(a), felon in possession of a firearm, constitutes an aggravated felony under INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E), and therefore supports sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A) for illegal re-entry conviction of violating INA 176(a), 8 U.S.C. 1326(a), because it is "an offense described in" 18 U.S.C. 922(g)(1), the federal felon-in-possession statute, even though the state crime, unlike 18 U.S.C. 922(g), it does not include any interstate or foreign commerce federal jurisdictional element).

FIREARMS OFFENSE - POSSESSION OF FIREARM BY FELON
United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. Mar. 26, 2001), cert. denied, 122 S.Ct. 294 (2001) (California conviction for violating California Penal Code § 12021(a), felon in possession of a firearm, constitutes an aggravated felony under INA § 101(a)(43)(E), 8 U.S.C. § 1101(a)(43)(E), because it is "an offense described in" 18 U.S.C. § 922(g)(1), the federal felon-in-possession statute, even though the state crime, unlike § 922(g), does not include any interstate or foreign commerce federal jurisdictional element, and therefore supports sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A) for illegal re-entry conviction of violating INA § 176(a), 8 U.S.C. 1326(a)).

FIREARMS OFFENSE - POSSESSION OF FIREARM BY ALIEN
United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. Mar. 13, 2000), cert. denied, 122 S.Ct. 408 (2001) (Washington conviction for possession of firearm by noncitizen, in violation of R.C.W. § 9.41.170, was not an aggravated felony, under INA § 101(a)(43)(E), 8 U.S.C. § 1101(a)(43)(E), for purposes of 16-level enhancement under Sentencing Guidelines for illegal re-entry conviction, since the state statute was broader than the applicable federal statute).

Lower Courts of Ninth Circuit

AGGRAVATED FELONY - FIREARMS OFFENSE - POSSESSION OF FIREARM BY ALIEN
United States v. Rodriguez-Magana, ___ F.Supp.2d ___, 2006 U.S. Dist. LEXIS 87021 (E.D. Wash. Nov. 29, 2006) (Washington conviction of unlawful possession of firearm, in violation of RCW 9.41.040(1)(a), does not categorically qualify as an aggravated felony firearms offense analogous to the federal offense of possession of a firearm by an undocumented noncitizen, under 18 U.S.C. 922(g)(5), because to commit the Washington offense, the defendant does not need to be a noncitizen or to be present in the United States illegally, and to commit the federal offense, the defendant does not need to have a prior felony conviction or its equivalent; therefore, the defendant was eligible for voluntary departure under 8 U.S.C. 1229c(a), and so suffered prejudice in removal proceedings when the Immigration Judge erroneously found he was ineligible for voluntary departure).

Lower Courts of Tenth Circuit

FIREARMS OFFENSE - POSSESSION OF SAWED-OFF SHOTGUN
United States v. Villanueva-Gaxiola, 119 F.Supp.2d 1185 (D.Kan. Sept. 26, 2000) (California conviction for unlawful possession of short-barreled shotgun, in violation of California Penal Code § 12020, was not an aggravated felony under INA § 101(a)(43)(E)(iii), 8 U.S.C. § 1101(a)(43)(E)(iii) as an offense described in 26 U.S.C. § 5861 or 18 U.S.C. 922(g)(5) for illegal re-entry sentencing purposes, since the elements of the state offense allow conviction for conduct which would not constitute the listed federal offense), following United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. Mar. 13, 2000).