Criminal Defense of Immigrants


§ 23.1 I. Summary for Criminal Defense Attorneys

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A conviction for an offense that includes, as an element, possession, use, or trafficking of a firearm or destructive device will often be considered an aggravated felony.  The tests (similar to aggravated felony drug trafficking[1]) are (1) whether the conviction involves trafficking of certain listed firearms,[2] or whether the offense was, or could have been, prosecuted under certain federal statutes.[3]


                Convictions that include, as an element, possession, use, or trafficking of a firearm or destructive device will also trigger deportation under the broader firearms ground of deportation.[4]  However, a firearms conviction will not trigger inadmissibility unless the offense is also considered a crime of moral turpitude or otherwise falls within another non-firearm ground of inadmissibility.[5]  This may have a significant effect on whether a noncitizen is eligible for relief.[6]


                Criminal counsel must be very careful when dealing with non-firearms offenses that were committed with a firearm (e.g., assault with a firearm, drug-trafficking while armed, etc.).   Depending how the offense is prosecuted, and whether any enhancements of the offense or sentence are imposed because of the use of a firearm, an otherwise non-firearm offense may become deportable as a firearms offense.[7]


                Outside the immigration context, a firearms offense can also trigger a serious sentence enhancement upon prosecution of illegal re-entry,[8] and both federal and state laws punish possession of a firearm by certain noncitizens.[9]


[1] See § 19.56, supra.

[2] See § 19.69, supra.

[3] See § 19.70, supra.

[4] INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).  See § § 23.8-23.18, infra.

[5] See § § 23.19-23.21, infra.

[6] See § 23.5, infra.

[7] See § § 23.4, 23.10, infra.

[8] See § 23.7, infra.

[9] See § 23.6, infra.



Second Circuit

Dulal-Whiteway v. US Dep't of Homeland Sec., 501 F.3d 116 (2d Cir. Sept. 19, 2007) (federal conviction for violation of 18 U.S.C. 922(a)(6), false statement in order to obtain a firearm, is divisible with respect to whether the conviction constitutes a firearms offense under immigration law, since the statute also punishes making a false statement in order to obtain ammunition; the record of conviction here showed the conviction was for false statement in order to obtain a firearm, and the conviction therefore constitutes a deportable firearms offense).