Safe Havens

A person convicted of (a) attempting, or (b) conspiring to commit a firearms offense, or (c) committing a substantive firearms offense, will be found deportable, although there is an argument that a conviction of attempt or conspiracy, to which a plea was entered prior to October 24, 1994, does not fall within this ground of deportation.

The original firearms deportation ground did not explicitly include conspiracy or attempt convictions.  The BIA therefore held that a conviction of conspiracy to commit a firearms offense did not trigger deportation.[1257] 

            In 1994, however, Congress added convictions of illegally “attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess or carry” a firearm or destructive device to the list of offenses that trigger deportation.  The statute provides that this new definition applies to convictions occurring before, on, or after October 24, 1994.[1258]  Therefore, this new definition of the firearm conviction deportation ground applies retroactively to all firearms convictions.[1259] 

The reasoning of this decision should be re-examined in light of INS v. St. Cyr,[1260] in which the Supreme Court refused to infer that Congress wished to disturb the settled expectations of a knowledgeable defendant at the time of plea by applying an expanded definition of a ground of deportation retroactively, absent an affirmative indication of congressional intent to do so.  One federal district court has applied St. Cyr to find the 1994 definition should not be applied retroactively.[1261]  

[1257] Matter of Hou, 20 I. & N. Dec. 513 (BIA 1992) (conspiracy to possess a firearm held not a deportable offense under former INA § 241(a)(2)(C)).

[1258] October 24, 1994, is the date of enactment of the Immigration and Nationality Technical Corrections Act of 1994, § 203(b)(1), amending former INA § 241(a)(2)(C) to include attempt and conspiracy to commit a firearms offense.

[1259] Matter of Saint John, 21 I. & N. Dec. 593 (BIA 1996).

[1260] INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001).

[1261] Drax v. Ashcroft, 178 F.Supp.2d 296, 307-308 (E.D.N.Y. 2001) (1994 amendments adding attempt and conspiracy as firearms offenses could not be applied retroactively, under the Supreme Court’s analysis in INS v. St. Cyr).