Criminal Defense of Immigrants


§ 23.15 3. Sporting or Cultural Use Exception

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In Lemus-Rodriguez v. Ashcroft,[89] the Seventh Circuit held that firearms convictions involving rifles possessed for sporting, recreational or cultural purposes could not trigger deportation.  The respondent had been convicted in Illinois of attempted reckless discharge of a firearm,[90] committed by firing a rifle into the air on New Year’s Eve.  He had applied for cancellation of removal,[91] but the immigration judge found his conviction disqualified him from that relief because it fell within the firearms ground of deportation.[92]  The Seventh Circuit held that the cultural purpose exception applied not only to destructive device convictions, but also to all firearms convictions.  It went on to hold, however, that respondent’s action of firing into the air on New Year’s Eve did not qualify as a cultural purpose within the meaning of the exception. 


                The Seventh Circuit’s reasoning started with the point that:


The definition of “destructive device” in 18 U.S.C. § 921(a) includes “any type of weapon . . . which will . . . expel a projectile,” and therefore includes a rifle, except “a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.” 18 U.S.C. § 92[1](a)(4).[93]


In considering whether the act of shooting a firearm into the air constituted a “cultural purpose,” the court stated: “since the statutory exception for cultural uses cannot be applied without determining the facts underlying the conviction, the general rule [against considering the underlying facts of the offense] cannot apply. United States v. Londono-Quintero, 289 F.3d 147, 151-52 (1st Cir. 2002); cf. United States v. Shannon, 110 F.3d 382, 384-85 (7th Cir. 1997) (en banc).”[94]


                The court then went on to explain that the cultural purpose exception must apply to firearms convictions, as well as destructive device convictions, in order to avoid rendering the exception entirely superfluous.  The court acknowledged that the cultural purpose exception expressly applied to destructive devices, but not to firearms, and then reasoned:


But “destructive device” we know is defined to include a firearm unless it is a rifle used for one of the approved purposes.  It would be passing odd if the government by its choice of whether to describe the firearm as a firearm simpliciter or as a destructive device, to wit, a firearm, could extinguish Congress’s evident intent not to make a subclass of firearms (namely rifles) used for approved purposes, albeit used in a criminal manner, a basis for precluding cancellation of removal.  A cultural purpose for using a rifle, for example to make a war movie or a detective movie, is actually easier to imagine than the use of a number of other destructive devices, such as bombs and machine guns, for similar purposes.[95]


In other words, it would render the cultural purpose exception entirely meaningless to apply it to destructive device rifles, but not “firearms,” since the government could then charge every destructive device rifle as a firearm and entirely nullify the cultural purpose exception.  Well-established rules of statutory construction do not permit an interpretation that would render statutory language mere surplusage. [96]


                The court, however, concluded without citation to authority or much in the way of reasoning that shooting into the air on New Year’s eve was not a cultural purpose.


Although there is no relevant legislative history or judicial interpretation, we think it is pretty clear that Lemus-Rodriguez’s use of his rifle was not cultural. Shooting rifles in the air to celebrate a holiday is part of the culture of some other countries, but it is not part of American culture, where for good reasons it is regarded as a dangerously, and criminally, irresponsible use of a firearm. Valerio-Ochoa v. INS, 241 F.3d 1092, 1095 (9th Cir. 2001); People v. Clem, 78 Cal.App.4th 346, 350, 92 Cal.Rptr.2d 727 (Cal.App. 2000); People v. Alonzo, 13 Cal.App.4th 535, 539-40, 16 Cal.Rptr.2d 656 (Cal.App.1993).[97]


Congress did not expressly limit its exception for cultural purposes to American cultural purposes, and the court offers no reasoned justification for judicially legislating that limitation on the cultural purpose exception.


The other lawful purposes contained in the same portion of the statute should no doubt be treated the same as the cultural purpose addressed in this decision.  Therefore, no noncitizen may be deported, under the firearms conviction ground of deportation,[98] on account of any offense involving “a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.”[99]  The elements of this exception therefore apply to a firearms or destructive device conviction involving:


(1)     a rifle

(2)     which the owner

(3)     intends to use solely for

(4)     sporting, recreational or cultural purposes.


It is possible to introduce proof outside the record of conviction to establish the elements of this exception.


This exception applies both to deportable firearms convictions, and to deportable aggravated felony firearms trafficking convictions.  The Seventh Circuit decision was based on the firearms conviction ground of deportation. [100]  The statutory exception, however, also applies to an aggravated felony conviction for firearms trafficking,[101] since that definition employs the same destructive device definition on which the application of this exception depends.  See § § 19.68-19.70, supra.


                The Eighth Circuit, however, distinguished Lemus and held without persuasive analysis that the sporting use exception applies only to the firearms ground of deportation, not the aggravated felony ground.  See § 19.69(D), supra.[102]


                A “derringer” pistol constitutes a “firearm” for federal criminal purposes.[103]  There is no “sporting use” exception to this definition, since it is not a rifle.[104] 

[89] Lemus-Rodriguez v. Ashcroft, 350 F.3d 652 (7th Cir. Nov. 26, 2003).

[90] 720 ILCS 5/24-1.5.

[91] INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1).

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

[93] Lemus-Rodriguez v. Ashcroft, 350 F.3d 652 at 653 (7th Cir. Nov. 26, 2003).

[94] Id. at 655.

[95] Ibid.

[96] United States v. Wenner, 351 F.3d 969 (9th Cir. Dec. 12, 2003).

[97]  Id. at 655-656 (emphasis in original).

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

[99] 18 U.S.C. § 924(a)(4). 

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

[101] INA § 101(a)(43)(C), 8 U.S.C. § 1101(a)(43)(C).

[102] Alvarado v. Gonzales, 484 F.3d 535 (8th Cir. Apr. 17, 2007) (per curiam) (federal conviction of possession of firearms and ammunition by an unlawful user of a controlled substance, under 18 U.S.C. § § 922(g)(3), 924(a)(2), constituted aggravated felony for purposes of removal and disqualification from cancellation of removal, despite the fact that the parties agreed in the plea agreement that the base offense level under the Sentencing Guidelines is reduced because the defendant possessed the firearm “solely for lawful sporting purposes,” distinguishing Lemus-Rodriguez v. Ashcroft, 350 F.3d 652, 655 (7th Cir. 2003), as not addressing an aggravated felony firearms offense).

[103] United States v. Morris, 904 F.2d 518 (9th Cir. 1990).

[104] United States v. Meldish, 722 F.2d 26 (2d Cir. 1983), cert. denied, 465 U.S. 1101 (1984). 



Eighth Circuit

Awad v. Gonzales, __ F.3d __, 2007 WL 2067857 (8th Cir. Jul. 20, 2007) (Minnesota misdemeanor conviction for transportation of a loaded firearm, in violation of Minnesota Statute 97B.045, constituted a deportable firearms offense under INA 237(a)(2)(C); court rejected argument that offense fit within sporting exception under 18 U.S.C. 921(a); the sporting exception applies only to "destructive devices," as defined by 18 U.S.C. 921(a)(4), not firearms under 18 U.S.C. 921(a)(3)), disagreeing with Lemus-Rodriguez v. Ashcroft, 350 F.3d 652 (7th Cir. 2003).

Tenth Circuit

United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir. May 7, 2012) (affirming conviction of being an illegal alien in possession of firearms in violation of 18 U.S.C. 922(g)(5)(A), 924(a)(2), rejecting claim that lawful sporting purposes exception to Sentencing Guideline should apply to defendant's offense: that exception does not, by its terms, apply to offenses under (a)(4). U.S.S.G. 2K2.1 cmt. n.6).