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.

Fourth Circuit

SAFE HAVENS - BB GUN NOT FIREARM
United States v. Walker, 40 F.3d 1245, 1245 (4th Cir. 1994) (Government conceded that BB gun was not a firearm under statutory definition), United States v. Rosa, 507 F.3d 142, 145 n. 1 (2d Cir. Oct. 30, 2007) (Court stated that not all guns are firearms, specifically naming BB guns as an example). Thanks to Richard Breitman & Roshani M. Gunewardene

NOTE: Some states (e.g. Florida, Nebraska) allow conviction for use of a deadly weapon by BB or other toy gun.