(B)  Listed Offenses.  Thus, the offenses specifically listed under this deportation ground are limited to the following:

 

Purchasing a firearm,

Selling a firearm,

Offering a firearm for sale,

Exchanging a firearm,

Using a firearm,

Owning a firearm,

Possessing a firearm, or

Carrying a firearm.

 

By listing these offenses, Congress must be construed to have intended to exclude all unlisted offenses.  See 7.7(B), supra.  This ground of deportation does not expressly include any offense “relating to” a firearm.  Congress certainly knew how to specify an offense “relating to” firearms, since it did so with respect to controlled substances, but it did not do so here.  Therefore, only the specifically listed offenses are included.

 

Further, since the statute specifically provides for deportation for one who is convicted of “offering for sale” a firearm, it must be construed as excluding offering to purchase, exchange, use, own, possess or carry a firearm.  By expressly including offering to commit one specific offense (sale), Congress must be construed to have intended to omit offering to commit the others.  Therefore, a conviction of solicitation of one of these unlisted offenses, which is equivalent to “offering to” commit the offense,[1226] must be held not to be a deportable firearms conviction.  See § 7.12, supra.

Possession of a firearm includes constructive possession.[1227]

 

Negligently discharging a firearm in violation of California Penal Code § 246.3 is a deportable firearms offense pursuant to 8 U.S.C.A. § 1227.  “[I]t is clear that Congress intended to embrace the entire panoply of firearms offenses.”[1228]

 

A conviction of making a false statement to a federally licensed firearms dealer, in connection with purchase of a firearm, in violation of 18 U.S.C. 922(a)(6), has been held to constitute a firearms offense.[1229]  This decision seems incorrect, since this offense is not listed in the ground of deportation.

[1226] United States v. Rivera-Sanchez, 247 F. 3d 905 (9th Cir. 2001).

[1227] Kuhali v. Reno, 266 F.3d 93, 101-107 (2d Cir. 2001) (conspiracy to export firearms and ammunition with a license, in violation of 22 U.S.C. § 2778, constitutes a firearms offense since unlicensed export implies constructive possession of a firearm); Aybar-Alejo v. INS, 230 F.3d 487 (1st Cir. 2000) (Rhode Island conviction of possession or control of a firearm by a noncitizen, in violation of R.I.G.L. 11-47-7, falls within the category of deportable firearms offenses because it is equivalent to constructive possession).

[1228] Valerio-Ochoa v. INS, 241 F.3d 1092 (9th Cir. 2001), as amended (Apr. 25, 2001), cert. denied, 534 U.S. 821, 122 S.Ct. 55 (2001), citing Hall v. INS, 167 F.3d 852 (4th Cir. 1999).

[1229] Hall v. INS, 167 F.3d 852 (4th  Cir. 1999).

Second Circuit

FIREARMS - FALSE STATEMENTS TO OBTAIN FIREARM
Dulal-Whiteway v. US Dep't of Homeland Sec., 501 F.3d 116 (2d Cir. Sept. 19, 2007) (federal conviction for violation of 18 U.S.C. 922(a)(6), false statement in order to obtain a firearm, is divisible with respect to whether the conviction constitutes a firearms offense under immigration law, since the statute also punishes making a false statement in order to obtain ammunition; the record of conviction here showed the conviction was for false statement in order to obtain a firearm, and the conviction therefore constitutes a deportable firearms offense).