Criminal Defense of Immigrants

 

(A)  The Statute.  In addition to the firearms trafficking aggravated felony discussed in § 19.69, supra, the aggravated felony definition[704] includes an offense described in the following sections of 18 U.S. Code:

 

·              844(h) (receiving stolen explosives),

 

·              841(i) (shipping or receiving explosives in interstate or foreign commerce by indictee, felon, fugitive, addict, or mental defective or committee),

 

·              844(d) (transportation or receipt of explosives in interstate or foreign commerce with intent to injure, intimidate or damage property),

 

·              844(e) (communication of threat or false information concerning attempt to injure, intimidate, or damage property by fire or explosive),

 

·              844(f) (malicious damage by fire or explosive to property of United States or organization receiving federal funds),

 

·              844(g) (illegal possession of explosive in airport),

 

·              844(h) (use or carrying of explosive in commission of federal felony),

 

·              844(i) (malicious destruction by fire or explosive of property used in or affecting commerce),

 

·              922(g)(1)-(5) (shipping or receiving firearms or ammunition by felon, fugitive, addict, mental defective or committee, alien unlawfully in U.S., dishonorable discharge, or person who renounced U.S. citizenship),[705]

 

·              922(j) (receiving stolen arms or ammunition),

 

·              922(n) (shipping or receiving arms or ammunition by felony indictee),

 

·              922(o) (possession of machine gun),

 

·              922(p) (possession of undetectable firearm),

 

·              922(r) (assembly of illegal rifle or shotgun from imported parts),

 

·              924(b) (ship or receive firearm or ammunition with intent therewith to commit a felony), and

 

·              924(h) (transfer of firearm with knowledge it will be used to commit a crime of violence or drug trafficking offense).

 

                The definition also includes “an offense described in” Internal Revenue Code § 5861 (26 U.S.C. § 5861) (failure to pay firearms tax, possession of unregistered firearm or one with serial number altered, etc.).  That section prohibits the following acts:

 

a.             engage in business as firearms dealer without having paid special tax or registered as required in 26 U.S.C. § § 5801, 5802,

 

b.             possess a firearm transferred in violation of this chapter (26 U.S.C. § § 5801-5872),

 

                c.             possess a firearm made in violation of this chapter,

 

d.             possess a firearm not registered to the possessor in the National Firearms Registration and Transfer Record,

 

                e.             transfer a firearm in violation of this chapter,

 

f.             make a firearm in violation of this chapter,

 

                g.             alter identification of a firearm required by this chapter,

 

                h.             possess a firearm with altered identification,

 

                i.              possess a firearm not identified as required by this chapter,

 

j.              transport or receive any firearm in interstate commerce which has not been registered as required by this chapter,

 

k.             possess a firearm imported into the U.S. in violation of 26 U.S.C. § 5844, or

 

                l.              knowingly make a false entry on any record required by this chapter.

A conviction of a listed offense, or of a state offense of which the minimum conduct falls entirely within one of the listed federal offenses, will constitute an aggravated felony under this definition.

 

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

[705] 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).