Criminal Defense of Immigrants

As with other conviction-based grounds of removal, the categorical analysis[51] must be applied to determine whether a conviction should be considered a firearms offense.

In Matter of Perez-Contreras,[52] for example, the BIA found that conviction under a Washington statute for “assault in the third degree” was not a basis for deportation under the firearms ground.  The offense punishes any person who “with criminal negligence, causes bodily harm accompanied by substantial [long lasting] pain . . . .”[53]  The BIA found that, regardless of the underlying facts, the respondent had not been convicted of an offense that necessarily involved a firearm, because use of a firearm was not an element of the statutory offense of conviction.[54] 

Where the statutory elements of the offense do not require a weapon at all, then a conviction cannot be a deportable firearm offense even if the record of conviction shows that the defendant actually used a firearm in violation of law.[55]  If a statute punishes use of a weapon, including a firearm, as well as other weapons, then it is divisible, and a noncitizen convicted under the statute should not be found deportable under the firearms ground unless the record of conviction establishes that s/he specifically pleaded guilty to use of a firearm.[56]

Several courts, however, have deviated from the normal test for determining whether a conviction falls within a ground of deportation and held that where the record of conviction establishes that a firearm was factually involved in the offense, the conviction constituted a firearms offense.[57]

[51] See Chapter 16, infra.

[52] Matter of Perez‑Contreras, 20 I. & N. Dec. 615 (BIA 1992).

[53]  See Revised Code of Washington § 9A.36.031(1)(f).

[54] See also Matter of Madrigal, 21 I. & N. Dec. 323 (BIA Apr. 23, 1996).

[55] Matter of Perez‑Contreras, 20 I. & N. Dec. 615 (BIA 1992).

[56] See, e.g., United States v. Martinez-Hernandez, 422 F.3d 1084 (10th Cir. Sept. 2, 2005) (California conviction for possession of a weapon, in violation of Penal Code § 12020(a)(1) cannot be considered a “firearms offense” where the record of conviction did not specify the weapon, even though the police report indicated that the weapon involved was a sawed-off shotgun); Matter of Pichardo, 21 I. & N. Dec. 330 (BIA 1996); Matter of Madrigal, 21 I. & N. Dec. 323 (BIA 1996) (defendant admitted use of a firearm at plea).  See also United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. Mar. 24, 2003) (California conviction of possession of dangerous weapon, a dagger, in violation of Penal Code § 12020(a), does not constitute an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since it is not a crime of violence under 18 U.S.C. 16(a) or (b) because there is no substantial risk offender might use violence in commission of the possession offense).

[57] See, e.g., Kuhali v. Reno, 266 F.3d 93, 101-107 (2d Cir. 2001) (conspiracy to export firearms and ammunition with a license, in violation of 22 U.S.C. § 2778, constitutes a firearms offense since unlicensed export implies constructive possession of a firearm); Emile v. INS, 244 F.3d 183 (1st Cir. 2001) (looking to police report); Vue v. INS, 92 F.3d 696 (8th Cir. 1996) (conviction of aggravated robbery with a weapon was sufficient to constitute a firearms offense where the record of conviction established the weapon was a firearm.).