Federal law prohibits possession of a firearm by “an alien . . . illegally or unlawfully in the United States,”[30]   Federal law also prohibits possession of a firearm by “an alien . . . admitted to the United States under a non-immigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(26))),”[31] unless the person was admitted “for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States,”[32] or is a foreign government official, distinguished foreign visitor, or foreign law enforcement officer under circumstances specified in 18 U.S.C. § 922(y)(2)(B), (C), or (D), or on petition receives a waiver from the Attorney General, on grounds the waiver would be in the interests of justice and would not jeopardize the public safety.[33]  Federal law does not violate equal protection by penalizing noncitizens for possession of firearms.[34]

 

A noncitizen who has a student visa, but is out of status, is held to be an “unlawfully in the United States” for purposes of prosecution under 18 U.S.C. § 922(g)(5)(A),[35] even though the firearm was purchased prior to the formal adjudication of deportability.[36]  Employment authorization[37] alone is not sufficient to avoid prosecution under this section.[38]  The Ninth Circuit has held that physical presence in a port of entry does not satisfy the element of the crime of being illegally or unlawfully in the United States required to constitute the offense of possession of a firearm by a person “illegally or unlawfully in the United States.”[39]

 

                Various states also prohibit possession of a firearm by certain noncitizens.[40]  These offenses may or may not qualify as aggravated felonies or trigger an illegal re-entry sentence enhancement, depending upon whether the elements of the state offense coincide with the federal offense.[41]

[30] 18 U.S.C. § 922(g)(5)(A). 

[31] 18 U.S.C. § 922(g)(5)(B).  See, e.g, United States v. Elrawy, 448 F.3d 309 (5th Cir. Apr. 26, 2006) (18 U.S.C. § 922(g)(5)(B) does not apply to a nonimmigrant visa entrant who is out of status).

[32] 18 U.S.C. § 922(y)(2)(A).

[33] 18 U.S.C. § 922(y)(3).

[34] United States v. Toner, 728 F.2d 115, 128-29 (2d Cir. 1984) (equal protection not violated by 18 U.S.C. § 1202(a)(5), which forbids criminal possession of firearms by noncitizens).

[35] United States v. Elrawy, 448 F.3d 309 (5th Cir. Apr. 26, 2006) (18 U.S.C. § 922(g)(5)(A), prohibiting possession of a firearm by a noncitizen who entered the United States illegally or is out of status, applies to a noncitizen who is out of status, but has had an I-130 visa petition filed on his behalf); United States v. Bazargan, 992 F.2d 844 (8th Cir. 1993) (noncitizen admitted under F-1 student visa who did not transfer schools properly under INS procedures properly convicted of violating this statute).

[36] United States v. Igbatayo, 764 F.2d 1039 (5th Cir. 1985).  But see United States v. Brissett, 720 F. Supp. 90 (S.D. Tex. 1989) (noncitizen with pending application to adjust status under INA § 245 not held not to be unlawfully in the United States).

[37] United States v. Lucio, 428 F.3d 519 (5th Cir. Oct. 12, 2005) (conviction under 18 U.S.C. § 922(g)(5)(A) [possession of firearm by undocumented noncitizen] upheld since noncitizen’s immigration status remains unlawful during the pendency of an application to adjust status; mere fact that he has received permission to work in the country does not alter the initial unlawfulness of his immigration status).

[38] But see United States v. Brissett, 720 F. Supp. 90 (S.D. Tex. 1989) (noncitizen with pending application to adjust status under INA § 245 not held not to be unlawfully in the United States).

[39] United States v. Lopez-Perera, 438 F.3d 932 (9th Cir. Feb. 21, 2006) (physical presence in a port of entry does not satisfy the element of the crime of being illegally or unlawfully in the United States required to constitute the offense of possession of a firearm by a person “illegally or unlawfully in the United States”).

[40] See, e.g., Washington Rev. Code § 9.41.170 (class C felony for any person who is not a citizen of the United States to carry or possess any firearm, without first having obtained an alien firearm license from the director of licensing).

[41] See United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. 2000) (Washington conviction for possession of a firearm by a noncitizen is not categorically an aggravated felony firearms offense since the federal offense only applies to undocumented noncitizens, not all noncitizens).

Fifth Circuit

POST CON RELIEF " GROUNDS" CONSTITUTIONALITY OF STATUTE FIREARMS OFFENSES " SECOND AMENDMENT DOES NOT PROTECT UNDOCUMENTED IMMIGRANTS
United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. Jun. 13, 2011) (federal statute prohibiting any alien illegally or unlawfully present in the United States from possessing any firearm or ammunition shipped in interstate or foreign commerce did not violate the Second Amendment, since undocumented noncitizens are not within the group the people to which the Second Amendment applies). Note: the majority notes that there are six uses of the phrase the people in the constitution, including in the First and Fourth Amendments. This case apparently opens the possibility that the First and Fourth Amendments could likewise be held not to apply to undocumented noncitizens.

Ninth Circuit

IMMIGRATION OFFENSES - POSSESSION OF FIREARM OR AMMUNITION BY NONCITIZEN UNLAWFULLY IN UNITED STATES OR ADMITTED TO UNITED STATES UNDER NONIMMIGRANT VISA
United States v. Latu, ___ F.3d ___ (9th Cir. March 19, 2007) (federal conviction affirmed for being noncitizen illegally present in the United States [i.e., not in valid immigrant, nonimmigrant or parole status] in possession of firearms or ammunition, and removable, since 18 U.S.C. 922(g)(5)(A) is constitutional under the Commerce Clause and was properly applied in defendant's case, despite noncitizen having filed an application for adjustment of status based on U.S. citizen spouse). http://caselaw.lp.findlaw.com/data2/circs/9th/0510815p.pdf

Tenth Circuit

IMMIGRATION OFFENSES " FEDERAL " ILLEGAL ALIEN IN POSSESSION OF FIREARMS " CONSTITUTIONALITY OF STATUTE FIREARMS OFFENSES " RIGHT TO BEAR ARMS
United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir. May 7, 2012) (affirming federal conviction of being an illegal alien in possession of firearms transported or shipped in interstate commerce, in violation of 18 U.S.C. 922(g)(5)(A), 924(a)(2), rejecting claim that the statute is unconstitutional as an abridgment of the right to bear arms as interpreted in District of Columbia v. Heller, 554 U.S. 570 (2008)).