Immigration consequences of firearms convictions

A criminal conviction for a firearm offense may affect an alien’s immigration status or his eligibility for relief. The immigration consequences of a firearm conviction would depend on the status of the alien. 

If an alien is applying for a visa or for lawful permanent resident (LPR) status, a firearm conviction would not necessarily disqualify the alien because this conviction is not a ground for inadmissibility under INA 212(a), unless it is also classified as a crime involving moral turpitude (CIMT). If an alien is applying for LPR status through adjustment, a firearm conviction may be considered, not as a ground for inadmissibility under INA 212(a), but as a factor to be weighed in the exercise of the adjudicating officer’s discretion due to the nature of adjustment as a discretionary form of relief.

If an alien is already an LPR, a firearm conviction may trigger his removal. A firearm conviction may fall into three possible grounds for removal: (1) aggravated felony under INA 237(a)(2)(A)(iii); (2) certain firearm offenses under INA 237(a)(2)(C); or (3) CIMT under INA 237(a)(2)(A)(i).

Let’s start with aggravated felony. INA 101(a)(43) identifies several offenses that would constitute aggravated felonies. A firearm conviction may fall into three possible categories of aggravated felonies under the following provisions: (1) INA 101(a)(43)(C) for illicit trafficking in firearms; (2) INA 101(a)(43)(E) for offenses described in certain sections of 18 USC 922, 18 USC 924 or 26 USC 5861; or (3) INA 101(a)(43)(F) for a crime of violence with a prison term of at least one year.

Examples of aggravated felony firearm offenses under INA 101(a)(43)(E), include, among others: (1) the possession of a firearm by a convicted felon, fugitive, drug addict, mentally ill person, or illegal alien, which is punishable 18 USC 922(g)(1-5); or (2) the transfer of a firearm with knowledge that it will be used to commit a crime of violence or a drug trafficking crime, which is punishable under18 USC 924(h)

A firearm conviction with a prison term of at least one year may also constitute an aggravated felony crime of violence under INA 101(a)(43)(F). 18 USC 16 defines a crime of violence as: (a) an offense that has as an element the use, attempted or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Source: AsiamJournal

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