Criminal Defense of Immigrants


§ 23.5 C. Eligibility for Relief

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Firearms offenses are somewhat unusual in that while they may cause deportability, they do not trigger inadmissibility (assuming the offense is not a crime of moral turpitude or controlled substances offense).  If the firearms offense is not an aggravated felony, the offense also does not bar relief as an aggravated felony.  Because of this anomaly,  non-aggravated felony, non-CMT firearms offenses will have the following unique effects on applications for relief: 


(1)        Adjustment of Status.[19]  Because firearms offenses do not trigger inadmissibility, a waiver is not required in making an application for adjustment of status.[20]


(2)        Cancellation for Lawful Permanent Residents.[21]  A firearms conviction does not disqualify a noncitizen from cancellation of removal for lawful permanent residents.  Furthermore, the commission of a firearms offense does not stop the clock for purposes of accruing the seven-year period of continuous lawful residence required for cancellation, since to stop the clock an offense committed must be referred to in INA § 212(a)(2).[22]  Because firearms offenses do not trigger inadmissibility, they are not listed in INA § 212(a)(2).


(3)        Good Moral Character. [23] A firearms conviction does not per se bar the noncitizen from showing Good Moral Character, but may do so if the conviction contributes to a bar based on sentence, such as the bar triggered by actually serving 180 or more days in custody or receiving a formal aggregate sentence of five years or more.  This is true wherever Good Moral Character is required, including naturalization and voluntary departure.


(4)        Waiver of Deportability under Former INA § 212(c).[24]  Because firearms offenses do trigger inadmissibility, they may not be waived under former INA § 212(c).[25]


Firearms offenses may still trigger mandatory detention,[26] bar judicial review,[27] render non-LPR’s ineligible for cancellation of removal,[28] bar asylum and withholding of removal as particularly serious crimes,[29] and have other negative immigration consequences, both statutorily and as a matter of discretion.

[19] See § 24.2, infra.

[20] Matter of Rainford, 21 I. & N. Dec. 598 (BIA 1992).

[21] See § § 24.3-24.6, infra.

[22] Matter of Campos-Torres, 22 I. & N. Dec. 1289 (BIA 2000)

[23] See § 15.6, supra.

[24] See § 24.28, infra.

[25] See, e.g., Komarenko v. INS, 35 F.3d 432 (9th Cir. 1994) (equal protection does not require that assault with a firearm be amenable to INA § 212(c) relief, even though the INS could have charged the offense as a crime involving moral turpitude, which would be amenable to a waiver under § 212(c)); Cabasug v. INS, 847 F.2d 1321 (9th Cir. 1988) (firearm conviction not amenable to § 212(c) relief because there is no analogous exclusion ground); Matter of Montenegro,20 I. & N. Dec. 603 (BIA 1992); Matter of Granados, 16 I. & N. Dec. 726 (BIA 1979).  Cf. Matter of Wadud, 19 I. & N. Dec. 182 (BIA 1984) (conviction of aiding and abetting a noncitizen to obtain a fraudulent visa not a ground of exclusion).  See also Nadine Wettstein, Firearms Crimes and Sec. 212(c) Relief: Second Circuit Stays Deportation Pending Resolution of Open Questions, 1 Bender’s Immigration Bulletin 18 (Mar. 1996).

[26] INA § § 236(c)(1)(B) and (C); 8 U.S.C. § § 1226(c)(1)(B) and (C).

[27] INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C).

[28] See § 24.5, infra.

[29] Matter of LSJ, 21 I. & N. Dec. 973 (BIA 1997); see also Matter of YL, 23 I. & N. Dec. 270 (A.G. 2002) (finding that aggravated felonies involving narcotics trafficking are presumptively particularly serious crimes).  See § § 24.18-24.21, 24.31, infra. 



Fourth Circuit

United States v. Ramos-Cruz, 667 F.3d 487 (4th Cir. Jan. 19, 2012) (undocumented noncitizen who applied for, and was denied, TPS prior to being found in possession of a firearm could be convicted as a "alien illegally or unlawfully in the United States" in possession of a firearm; leaving open the question of whether an undocumented noncitizen with TPS pending could be convicted under the same statute).