Criminal Defense of Immigrants

(D)  Sporting, Recreational, or Cultural Exception for Rifles.  In Lemus-Rodriguez v. Ashcroft, [700] the Seventh Circuit held that firearms convictions involving rifles possessed for sporting, recreational or cultural purposes could not trigger deportation.  See § 23.15, infra.  The Seventh Circuit decision was based on the firearms conviction ground of deportation.[701]  The statutory exception, however, also applies to an aggravated felony conviction for firearms trafficking,[702] since that definition employs the same destructive device definition containing this exception. The Eighth Circuit, however, distinguished Lemus as applying only to the firearms ground of deportation, not the aggravated felony ground.[703]

                Note that some firearms offenses that are not aggravated felonies may still result in a sentence enhancement upon prosecution for illegal re-entry.  See § 19.22, supra.

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

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

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

[703] Alvarado v. Gonzales, 484 F.3d 535, 536 (8th Cir. Apr. 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), 924(a)(2), constituted aggravated felony for purposes of removal and disqualification from cancellation of removal, despite the fact that the parties agreed in the plea agreement that the base offense level under the Sentencing Guidelines is reduced because the defendant possessed the firearm “solely for lawful sporting purposes,” distinguishing Lemus-Rodriguez v. Ashcroft, 350 F.3d 652, 655 (7th Cir. 2003), as not addressing an aggravated felony firearms offense).