The government bears the burden of proving every element of a ground of deportation by clear and convincing evidence.  See § 5.24, supra.  If the government cannot prove that the conviction involved an essential element that “is” a firearm or destructive device, the ground of deportation has not been established.

 

            If a conviction cannot be avoided, counsel should attempt to obtain a conviction under a divisible statute, where the record of conviction does not establish that the conviction is under the firearms portion of the divisible statute.  For example, a conviction of a non-firearms offense with a firearms enhancement will not trigger deportation as a firearms conviction.[1231]  A conviction of possession of a deadly or dangerous weapon that does not specify the weapon is a firearm will not trigger deportation.

 

In Matter of Perez-Contreras,[1232] the BIA found that conviction under a Washington statute for “assault in the third degree” was not a basis for deportation under the firearms ground.  The offense punishes any person who “with criminal negligence, causes bodily harm accompanied by substantial [long lasting] pain . . . .”[1233]  Although the criminal information stated that the respondent used a pistol, the statute of conviction did not mention a firearm or any kind of weapon.  The BIA found that, regardless of the underlying facts, the respondent had not been convicted of an offense that necessarily involved a firearm.

 

In Perez-Contreras, the charged offense did not involve a weapon of any kind.  Arguably under the plain meaning of the firearms deportation ground and consistent with the reasoning in Perez-Contreras, conviction under a section that involves a weapon but does not define it as a firearm should not be held to be a firearms offense, even if the record reveals that the weapon was a firearm.   Of course, the safest course for criminal defense counsel is to (a) avoid conviction of an offense defined as involving a weapon; or (b) if the offense is defined as involving a weapon, keep the record of conviction clear from references to a firearm.[1234]

[1231] Matter of Rodriguez-Cortes, 20 I. & N. Dec. 587 (BIA Oct. 19, 1992) (conviction of five counts of attempted murder in the second degree, where sentence under one count was enhanced pursuant to California Penal Code § 12022(a) because a codefendant was armed with a firearm in the attempted commission of the felony, is not a conviction of a firearm offense under California law and is not deportable under INA § 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C) (Supp. III 1991), as an alien convicted at any time after entry of a firearm violation, and respondent is eligible to apply for a waiver of inadmissibility under INA § 212(c), 8 U.S.C. § 1182(c) (Supp. III 1991).

[1232] Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992).

[1233]  See Revised Code of Washington § 9A.36.031(1)(f).

[1234] In the context of moral turpitude offenses, immigration courts have considered the record of conviction to consist of the indictment or information, plea, verdict and sentence, but not prosecutor’s remarks, police reports, etc.  See K. BRADY, California Criminal Law And Immigration § 4.11 (2004).

Second Circuit

FIREARMS - MENACING NATURE OF CONVICTION - DIVISIBLE STATUTE ANALYSIS - MODIFIED CATEGORICAL ANALYSIS
Lanferman v. BIA, 576 F.3d 84 (2d Cir. Aug. 5, 2009) (New York conviction of menacing in the second degree, in violation of New York Penal Law 120.14, may be a divisible statute, under the modified categorical analysis, for purposes of deportability under INA 237(a)(2)(C), 8 U.S.C. 1227(a)(2)(C), so case is remanded for that determination by the BIA in the first instance); accord, James v. Mukasey, 522 F.3d 250 (2d Cir. 2008).

Fourth Circuit

SAFE HAVENS - BB GUN NOT FIREARM
United States v. Walker, 40 F.3d 1245, 1245 (4th Cir. 1994) (Government conceded that BB gun was not a firearm under statutory definition), United States v. Rosa, 507 F.3d 142, 145 n. 1 (2d Cir. Oct. 30, 2007) (Court stated that not all guns are firearms, specifically naming BB guns as an example). Thanks to Richard Breitman & Roshani M. Gunewardene

NOTE: Some states (e.g. Florida, Nebraska) allow conviction for use of a deadly weapon by BB or other toy gun.

Tenth Circuit

FIREARMS OFFENSE
United States v. Martinez-Hernandez, 422 F.3d 1084 (10th Cir. Sept. 2, 2005) (California conviction for possession of a weapon, in violation of Penal Code 12020(a)(1) cannot be considered a "firearms offense" where the record of conviction did not specify the weapon, even though the police report indicated that the weapon involved was a sawed-off shotgun).