Criminal Defense of Immigrants

The DHS has the burden[83] of showing that the noncitizen entered a plea to a firearms offense involving a listed firearm or destructive device.  It may be the case that the law violated does not involve a listed firearm. 

It may also be that the state law places restrictions upon firearms that are permitted under the listed federal statutes.  Thus, the fact of a state firearms conviction does not necessarily establish that a “firearm,” as defined under federal law, was involved.  This is similar to the situation where a noncitizen enters a plea to a state controlled substances offense, but the record of conviction does not identify the controlled substance.[84]

                Counsel can make a related argument where the statute of conviction punishes, for example, possession of a “deadly weapon” during a felony, since the term “deadly weapon” may include items other than firearms, such as knives.  See § 23.10, supra.

[83] See § 17.9, supra.

[84] See § 21.34, supra.