Criminal Defense of Immigrants


§ 23.11 C. Listed Offenses

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The list of firearms offenses triggering deportation is very inclusive, and it is difficult to find substantive firearms offenses that could be found by a court not to be included on this list.  The offenses specifically listed under this deportation ground[58] are limited to the following:


Purchasing a firearm,

Selling a firearm,

Offering a firearm for sale,

Exchanging a firearm,

Using a firearm,

Owning a firearm,

Possessing a firearm,[59] or

Carrying a firearm.


However, by listing these offenses, Congress must be construed to have intended to exclude all unlisted offenses.  This ground of deportation does not expressly state it includes any offense “relating to” a firearm.[60]  Congress certainly knew how to specify an offense “relating to” firearms, since it did so with respect to controlled substances, but it did not do so here.  Therefore, only the specifically listed offenses should be included.  Unfortunately, given the breadth of this list, some courts have suggested that all firearms offenses are included.[61]


Attempting and conspiring to commit a listed offense are expressly included.  However, there are excellent arguments that other unlisted inchoate and related offenses do not trigger deportation.[62]  See § 23.17, infra.


Further, since the statute specifically provides for deportation for one who is convicted of “offering for sale” a firearm, it must be construed as excluding offering to purchase, exchange, use, own, possess or carry a firearm.  By expressly including offering to commit one specific offense (sale), Congress must be construed to have intended to omit offering to commit the others.  Therefore, a conviction of solicitation of one of these unlisted offenses, which is equivalent to “offering to” commit the offense,[63] must be held not to be a deportable firearms conviction.


[58] INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).

[59] Including constructive possession. 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); Aybar-Alejo v. INS, 230 F.3d 487 (1st Cir. 2000) (Rhode Island conviction of possession or control of a firearm by a noncitizen, in violation of R.I.G.L. § 11-47-7, falls within the category of deportable firearms offenses because it is equivalent to constructive possession).

[60] See § 16.36, supra.

[61] Valerio-Ochoa v. INS, 241 F.3d 1092 (9th Cir. 2001) (“[I]t is clear that Congress intended to embrace the entire panoply of firearms offenses.”), as amended (Apr. 25, 2001), cert. denied, 534 U.S. 821, 122 S.Ct. 55 (2001), citing Hall v. INS, 167 F.3d 852 (4th Cir. 1999) (conviction of making a false statement to a federally licensed firearms dealer, in connection with purchase of a firearm, in violation of 18 U.S.C. § 922(a)(6), constitutes a firearms offense).

[62] See Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997); United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc).

[63] United States v. Rivera-Sanchez, 247 F. 3d 905 (9th Cir. 2001).