(B)  Safe Havens Specific to this Category.  There are a number of safe havens applicable to this definition:

 

            (1)  Most Ammunition Not Included.  The statutory definition of “firearms” and “destructive devices”[570] does not mention any criminal offense involving ammunition, except for “armor piercing ammunition.”[571]  Therefore, commercial trafficking in other types of ammunition do not constitute aggravated felonies within this definition.

            (2)  Small Arms Ammunition and Components Not Included.  “[S]mall arms ammunition and components thereof” are not considered to be explosives except for certain offenses contained in 18 U.S.C. § 844(d)-(i) involving intent to kill, injure, or intimidate or actual destruction of property.[572]

 

            (3)  Commercial Element Required.  The illicit trafficking required here should be interpreted consistently with the illicit trafficking in a controlled substance.  See § 7.68, supra.  Therefore, no conviction of any offense should be considered to fall within this definition unless it has a requirement of commercial trafficking as an element.  The Second Circuit has held, however, that a conviction for conspiracy to export firearms and ammunition without a license constitutes a firearms trafficking offense warranting removal, despite the fact that the concept of “export” could include export for personal use and thus the elements of the offense did not necessarily involve a commercial element so as to constitute “trafficking.”[573]  This is a poorly reasoned decision and should not be followed.

 

            (4)  Sporting, Recreational, or Cultural Exception for Rifles.  A noncitizen cannot be deported, or suffer other adverse immigration consequences, on account of a firearms conviction based on a rifle possessed for sporting, recreational, or cultural purposes.[574]  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[575] by firing a rifle into the air on New Year’s Eve.  He had applied for cancellation of removal under INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), but the immigration judge found his conviction disqualified him from that relief because it fell within the firearms ground of deportation.[576]  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).[577]

 

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.”[578]

            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.[579]

 

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.[580]

            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).[581]

 

Congress did not expressly limit its exception for cultural purposes to American cultural purposes, and the court offers no reasoned justification for judicially grafting 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 8 U.S.C. § 1227(a)(2)(C), on account of any offense involving “a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.”[582]  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.[583]  The statutory exception, however, also applies to an aggravated felony conviction for firearms trafficking,[584] since that definition employs the same destructive device definition on which the application of this exception depends. 

[570] 18 U.S.C. § 921(a)(3).

[571] 18 U.S.C. § 921(a)(17)(B); see § 18 U.S.C. 921(a)(17)(a) (generic definition of “ammunition”).

[572] 18 U.S.C. § 845(a)(4).

[573] Kuhali v. Reno, 266 F.3d 93 (2d Cir. 2001).

[574] See Lemus-Rordiguez v. Ashcroft, 350 F.3d 652, 350 F.3d 652 (7th Cir. November 26, 2003).

[575] 720 ILCS 5/24-1.5.

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

[577] Id. at 653-54.

[578] Id. at 655, citing 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).

[579]  Id. at 655.

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

[581]  Id. at 655-56 (emphasis in original).

[582] 18 U.S.C. § 924(a)(4).

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

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

Fifth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION
Arce-Vences v. Mukasey, 512 F.3d 167 (5th Cir. Dec. 21, 2007) ("Arce's conviction for possession [of between 50 and 2000 pounds] of marijuana is not an aggravated felony. Commission of an aggravated felony was the sole charge on which he was ordered removed. Because, in the light of Lopez, we hold that Arce's conviction for possession of marijuana is not an aggravated felony, we vacate his order of removal.").

AGGRAVATED FELONY - DRUG TRAFFICKING - TRANSPORTATION OF AT LEAST 100 POUNDS OF MARIJUANA
United States v. Lopez-Salas, 513 F.3d 174 (5th Cir. Jan. 3, 2008) (North Carolina conviction of conspiring "to commit the felony of trafficking by transporting 100 pounds or more but less than 2000 pounds of marijuana", under General Statutes of North Carolina 90-95(h), constituted a "drug trafficking offense" under USSG 2L1.2(b)(1)(A)(i) for purposes of imposing a 16-level sentence enhanccment for illegal reentry after deportation).

AGGRAVATED FELONY - DRUG TRAFFICKING - INFERRING INTENT TO SELL OR MANUFACTURE FROM AMOUNT INVOLVED IN POSSESSION/TRANSPORTATION CONVICTION
United States v. Lopez-Salas, 513 F.3d 174 (5th Cir. Jan. 3, 2008) (noting a circuit split, the court found that a possessory or transportation offense could not be considered a drug trafficking offense for illegal re-entry sentencing purposes merely because of the large amount of drugs involved; court review must be limited to elements of statute of conviction), disagreeing with United States v. Madera-Madera, 333 F.3d 1228, 1231-34 (11th Cir.2003), agreeing with United States v. Villa-Lara, 451 F.3d 963, 965 (9th Cir.2006); United States v. Montanez, 442 F.3d 485, 493-94 (6th Cir.2006); United States v. Herrera-Roldan, 414 F.3d 1238, 1240-43 (10th Cir.2005).