Criminal Defense of Immigrants

(A)  Former Versions.  Prior to the Anti-Drug Abuse Act of 1988,[108] the firearms deportation ground made deportable anyone who, “at any time after entry, shall have been convicted of possessing or carrying in violation of any law any weapon which shoots or is designed to shoot automatically or semi-automatically more than one shot without manual reloading, by a single function of the trigger, or a weapon commonly called a sawed-off shotgun.” Therefore, the original firearm ground of deportability applied only to convictions for machine guns and sawed-off shotguns.

                Effective to any noncitizen convicted on or after November 18, 1988, the firearms ground was amended to include anyone “convicted of possessing or carrying in violation of any law any firearm or destructive device (as defined in paragraphs (3) and (4)) [sic], respectively, of section 921(a) of title 18, United States Code, or any revolver or any weapon which shoots or is designed to shoot automatically or semiautomatically more than one shot without manual reloading, by a single function of the trigger, or a weapon commonly called a sawed-off shotgun.”

                The Immigration Act of 1990 renumbered and reclassified the grounds of deportability, and expanded the list of weapons that would trigger this ground of deportation:[109] “Any alien who at any time after entry is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying in violation of any law, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) is deportable.”  This expanded definition applied to noncitizens issued an Order to Show Cause on or after March 1, 1991.  In 1993, the Board held that a noncitizen with a 1972 firearms conviction who received notice after March 1, 1991 was deportable under the 1990 amendments because those amendments replaced the 1988 statute completely, including its prospective effective date.[110]

                In 1994 Congress added convictions of illegally “attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess or carry” a firearm or destructive device to the list of offenses that trigger deportation.[111]  The statute provides that this new definition applies to convictions occurring before, on, or after October 24, 1994.  Therefore, this new definition of the firearm conviction deportation ground applies retroactively to all firearms convictions.[112]

[108] Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4473 (Nov. 18, 1988).

[109] INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C), as amended by the Immigration Act of 1990, Pub. L. No. 101-649, § 602, 104 Stat. 4978, 5077.

[110] Matter of Chow, 20 I. & N. Dec. 64 (BIA 1993).

[111] Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, § 203(b)(1), 108 Stat. 4305, 4311 (Oct. 25, 1994).

[112] Matter of Saint John, 21 I. & N. Dec. 593 (BIA 1996).