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

            (1)  Exclusion of Pistols or Revolvers with Rifled Bores from Listed Internal Revenue Code Offenses.  All of these acts prohibited under the Internal Revenue Code relate to “firearms.”  Firearms are defined to include short-barreled shotguns, short-barreled rifles, machine guns, silencers, destructive devices, and “any other weapon.”[586]  (26 U.S.C. § 5845(a).)[587]  “Firearm” does not include pistols or revolvers with rifled bores.[588]

 

            (2)  Exclusion of Antique Firearms from Listed Internal Revenue Code Offenses.  The term “antique firearm” is defined in 26 U.S.C. § 5845(g).  Antiques are excluded from this definition of firearms.  The Board of Immigration Appeals, however, erroneously placed the burden of proof on the respondent to establish that the firearm in question came within the definition of antique.[589]  This flies in the face of the rule requiring the government to prove by clear and convincing evidence every fact necessary to establish a ground of deportation.  See § 5.24, supra.

            (3)  Exclusions from “Destructive Device.”   Destructive device is defined to include explosive, incendiary, or poison gas bombs, grenades, or rockets with more than four ounces of propellant, and any weapon with a barrel greater than one-half inch in diameter that will expel a projectile, as well as kits for converting anything into a destructive device.  The term does not include items not designed or redesigned for use as weapons, items “redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device,” “or any other device which the Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes.”[590]

(4)  Exclusion of Ammunition.  Ammunition per se is not included within the definition of firearms or destructive devices in 26 U.S.C. § 5845(a) and related sections.  It is clear that Congress knew how to refer to ammunition when it wished to do so: it listed certain ammunition offenses as aggravated felonies.[591]  It could easily have listed ammunition generally in this definition if it had wished to do so.  The fact that it did not signifies its intention to exclude ammunition from the aggravated felony definition.

            (5)  Safe Haven for Overbroad State Offenses.  A conviction of a state firearms offense will not fall within this category unless the minimum conduct required to constitute the state offense invariably falls within one of the listed federal statutes.  See § 7.69, supra.  For example, possession of an unregistered firearm constitutes a listed aggravated felony.[592]  On the other hand, possession of a short-barreled shotgun under California law was held not to be a listed firearms aggravated felony, since the state statute of conviction did not list lack of registration as an element of the offense.[593]

 

The Ninth Circuit has set out a strict rule concerning what state firearms offenses will be considered aggravated felonies as analogues to the referenced federal firearms offenses.  The court stated that where conduct could violate a state statute, yet not violate the federal analogue, a state conviction does not constitute an aggravated felony “described in” the federal statute for federal sentencing purposes.  In order for a state offense to be “described in” a federal one, all of the conduct criminalized by the state law must be included within the conduct criminalized by the federal law.[594] 

            In 2000, the Board of Immigration Appeals held that a state court conviction for felon in possession of a firearm could not be an aggravated felony because it lacked the jurisdictional element relating to interstate commerce.[595]  Thereafter, the Ninth Circuit held that this offense did qualify as an aggravated felony for sentencing guidelines purposes, rejecting the argument that the state offense lacked the federal jurisdictional element requiring an effect on interstate commerce.[596]  The BIA then reconsidered the question on its own motion and reversed course, finding that the state offense is “described in” the federal statutes, despite the absence of a nexus to interstate commerce.[597] 

 

A state conviction for being an ex-felon in possession a firearm is therefore now an aggravated felony in immigration proceedings.  The counter-arguments can be raised in other circuits where the question remains open, but due to the Board’s strong statement in Vasquez-Muniz, a contrary result seems unlikely. 

 

            (6)  Effective Date Limitation.  The statute that added these firearms offenses to this aggravated felony definition states: “The amendments made by this section shall apply to convictions entered on or after the date of enactment of this Act.”[598]  This gives rise to an argument that a firearms conviction covered by this amendment, which occurred before October 25, 1994, the effective date, does not constitute an aggravated felony under the law which requires assessing the immigration impact of the conviction as of the date of the plea.[599]

 

[586] “The term “any other weapon” means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire.  Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.”  26 U.S.C. § 5845(e).

[587] “The term “firearm” means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machine gun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device.  The term “firearm” shall not include an antique firearm or any device (other than a machine gun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector’s item and is not likely to be used as a weapon.”  26 U.S.C. § 5845(a).

[588] 26 U.S.C. § 5845(e), last sentence.

[589] Matter of PF, 20 I. & N. Dec. 661 (BIA 1993) (“In the absence of any evidentiary showing by the respondent that the weapon was an antique firearm, we find that the conviction record establishes that the respondent used a “firearm,” as defined by 18 U.S.C. § 921(a) (1988), in the commission of the armed robbery. See United States v. Laroche, 723 F.2d 1541 (11th Cir.), cert. denied, 467 U.S. 1245 (1984).”).

[590] 26 U.S.C. § 5845(f).  “The term ‘destructive device’ means (1) any explosive, incendiary, or poison gas (a) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device; (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled.  The term ‘destructive device’ shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of § § 4684(2), 4685, or 4686 of title 10 of the United States Code; or any other device which the Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes.”  26 U.S.C. § 5845(f).

[591] E.g., INA § 101(a)(43)(E), 8 U.S.C. § 1101(a)(43)(E), listing 18 U.S.C. § § 922(g)(1)-(5) (ship or receive firearms or ammunition by felon, fugitive, addict, mental defective or committee, alien unlawfully in U.S., dishonorable dischargee, or person who renounced U.S. citizenship); 922(j) (receiving stolen arms or ammunition); 922(n) (ship or receive arms or ammunition by felony indictee); 924(b) (ship or receive firearm or ammunition with intent therewith to commit a felony).

[592] United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir April 3, 2003) (Texas conviction for possession of a prohibited weapon — a short-barrel firearm — in violation of Tex. Penal Code § 46.05, constituted a listed aggravated felony firearms offense under INA § 101(a)(43)(E)(iii), 8 U.S.C. § 1101(a)(43)(E)(iii), as an “offense described in . . . [26 U.S.C. § ] 5861 . . . (relating to firearms offenses),” for purposes of a 16-level sentence enhancement for illegal re-entry pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(iii)(2000)).

[593] United States v. Villanueva-Gaxiola, 119 F.Supp.2d 1185, 1189 (D. Kan. 2000) (California conviction of unlawful possession of a short-barreled shotgun was not an offense “described in” 26 U.S.C. § 5861, and thus was not a listed aggravated felony firearms offense under INA § 101(a)(43)(E)(iii), 8 U.S.C. § 1101(a)(43)(E)(iii), for purposes of a 16-level sentence enhancement for illegal re-entry pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(iii) (2000), since the California statute neither included non-registration as an element of the offense nor allowed a registration defense).

[594] United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. 2000) (reversing 16-level increase in offense level for illegal re-entry, since state firearms offense was not “described in” federal firearms statute).

[595] Matter of Vasquez-Muniz, 22 I. & N. Dec. 1415 (BIA 2000), overruled 23 I. & N. Dec. 207 (BIA 2002). 

[596] United States v. Castillo-Rivera, 244 F.3d 1021 (9th Cir. 2001).

[597] Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002).

[598] INA § 101(a)(43)(E), 8 U.S.C. § 1101(a)(43)(E), was added by the 1994 Immigration and Nationality Technical Correction Act § 222(a), Pub.L. 103- 416, Oct. 25, 1994, 108 Stat. 4305. Section § 222(b) contains the effective date provision.

[599] Cf. INS v. St. Cyr, 533 U.S. 289 (2001).

Third Circuit

AGGRAVATED FELONY " FIREARMS AND DESTRUCTIVE DEVICES " ARSON " FEDERAL JURISDICTIONAL ELEMENT
Bautista v. Atty Gen. of the U.S., 744 F.3d 54 (3d Cir. Feb. 28, 2014) (New York conviction of attempted arson in the third degree, in violation of Penal Law 110 and 150.10, did not categorically constitute a match for the elements of 18 U.S.C. 844(i), and is therefore not an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), because the New York arson statute does not require the federal jurisdictional element that the object of the arson be used in interstate commerce, which the Supreme Court has found to be a critical and substantive element of that arson offense). The court reasoned as follows: We must assume that Congress was aware of the limits imposed by the Commerce Clause on the reach of the statutes it passes and that it restricted the breadth of 101(a)(43)(E) with the substantive constraints of the included jurisdictional elements in mind. See United States v. Am. Bldg. Maint. Indus., 422 U.S. 271, 279"80, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975) (comparing Congress's use of in commerce versus affected commerce to show that Congress is aware of its Commerce Clause power and the extent to which it asserts that power in drafting statutes). We cannot undermine the categorical approach and Congress's deliberate choice to include 844(i), rather than generic arson, in 101(a)(43)(E)(i). Further, were we to ignore the jurisdictional element in our categorical approach to 844(i), as the BIA has here, we would be characterizing a state conviction for arson of the intrastate house in Jones as an aggravated felony described in 844(i), when the Supreme Court clearly excised the arson of such intrastate objects from the scope of that federal statute. Id. at 64-66.

AGGRAVATED FELONY " FIREARMS AND DESTRUCTIVE DEVICES " ARSON " FEDERAL JURISDICTIONAL ELEMENT
Bautista v. Atty Gen. of the U.S., 744 F.3d 54 (3d Cir. Feb. 28, 2014) (New York conviction of attempted arson in the third degree, in violation of Penal Law 110 and 150.10, did not categorically constitute a match for the elements of 18 U.S.C. 844(i), and is therefore not an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), because the New York arson statute does not require the federal jurisdictional element that the object of the arson be used in interstate commerce, which the Supreme Court has found to be a critical and substantive element of that arson offense). The court reasoned as follows: We must assume that Congress was aware of the limits imposed by the Commerce Clause on the reach of the statutes it passes and that it restricted the breadth of 101(a)(43)(E) with the substantive constraints of the included jurisdictional elements in mind. See United States v. Am. Bldg. Maint. Indus., 422 U.S. 271, 279"80, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975) (comparing Congress's use of in commerce versus affected commerce to show that Congress is aware of its Commerce Clause power and the extent to which it asserts that power in drafting statutes). We cannot undermine the categorical approach and Congress's deliberate choice to include 844(i), rather than generic arson, in 101(a)(43)(E)(i). Further, were we to ignore the jurisdictional element in our categorical approach to 844(i), as the BIA has here, we would be characterizing a state conviction for arson of the intrastate house in Jones as an aggravated felony described in 844(i), when the Supreme Court clearly excised the arson of such intrastate objects from the scope of that federal statute. Id. at 64-66.

AGGRAVATED FELONY - FIREARMS TRAFFICKING
Joseph v. Attorney General of U.S., ___ F.3d ___, 2006 WL 2796256 (3d Cir. Oct. 2, 2006) (federal conviction of importing a firearm into a state, in violation of 18 U.S.C. 922(a)(3), does not constitute an "aggravated felony" of "illicit trafficking in firearms" under INA 101(a)(43)(C) and 237(a)(2)(A)(iii), 8 U.S.C. 1101(a)(43)(C), 1227(a)(2)(A)(iii), because 922(a)(3) does not include a "trafficking element").

AGGRAVATED FELONY - FIREARMS TRAFFICKING - TRANSPORTATION ACROSS STATE LINES
Joseph v. United States Atty Gen., 465 F.3d 123 (3d Cir. Oct. 2, 2006) (federal conviction of 18 U.S.C. 922(a)(3) and 924(a)(1)(D) [transporting firearm across state lines] is not an aggravated felony firearms trafficking offense under INA 101(a)(43)(C) for immigration purposes because the statute does not at a minimum require "trafficking" in firearms; the offense may be committed by bringing ones own firearm across state lines).

AGGRAVATED FELONY - FIREARMS TRAFFICKING - TRANSPORTATION ACROSS STATE LINES
Joseph v. United States Atty Gen., 465 F.3d 123 (3d Cir. Oct. 2, 2006) (federal conviction of 18 U.S.C. 922(a)(3) and 924(a)(1)(D) [transporting firearm across state lines] is not an aggravated felony firearms trafficking offense under INA 101(a)(43)(C) for immigration purposes because the statute does not at a minimum require "trafficking" in firearms; the offense may be committed by bringing ones own firearm across state lines).