Criminal Defense of Immigrants

(C)  Commercial Element Required.  No conviction of any offense falls within this definition unless it requires commercial trafficking as an element.[698]  The Second Circuit has held, however, that a conviction for conspiracy to export firearms and ammunition without a license constitutes a firearms trafficking offense warranting removal, despite the fact that the concept of “export” could include export for personal use, and thus the elements of the offense did not necessarily involve a commercial element so as to constitute “trafficking.”[699]  This is a poorly reasoned decision and should not be followed.

[698] Joseph v. United States Att’y 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 one’s own firearm across state lines).

[699] Kuhali v. Reno, 266 F.3d 93 (2d Cir. 2001).