How Firearms Convictions Affect Immigration and Deportation

Not only can you face criminal penalties for committing a firearm offense in California, but you can also face adverse immigration consequences like deportation. The federal Immigration and Nationality Act (INA) does not care if you have lived in the U.S. for many years, run an enterprise, have been productive in society, or have children born here who are citizens. Your stakes can be higher than you realize. Consequently, you should hire a seasoned immigration attorney who understands how a conviction can affect your rights and immigration status.

Firearm Crimes That Make an Alien Inadmissible into America

Under the United States Immigration and Nationality Act, firearms convictions could result in negative immigration repercussions being marked inadmissible for non-American citizens or legal permanent residents wishing to remain or enter the U.S.

Individuals who have the classification of being inadmissible cannot do the following:

• Enter America legally.
• Adjust their residential status to legal permanent residence.
• Receive a United States visa, like a student (F-1) visa or a K-1 fiancee visa.

Fortunately, firearm crimes do not fall under offenses that can make you inadmissible. Nevertheless, some firearms crimes can result in inadmissibility if they fall under either of the following classifications:

• Crime involving moral turpitude (CIMTs).
• Aggravated felonies.

A firearm crime fits into either of the two classifications if it consists of actual or threatened gun use.  For instance, violating public carry or concealment laws does not fall under a CIMT or aggravated felony.

You are also not admissible if you have at least two convictions and your imprisonment is five years or longer.

Firearms Crimes That Make an Alien Deportable

Federal gun crimes are deportable offenses regardless of your immigration status. You could face removal for violating federal law by committing crimes involving destructive devices or firearms, including:

• Selling.
• Purchasing.
• Exchanging.
• Providing for sale.
• Owning.
• Using.
• Carrying.
• Possessing.
• Trying or planning to commit the offenses mentioned above.

However, many gun crimes face prosecution under California law, and gun violations in the state are prosecuted differently than crimes under federal firearm laws.

Defining the Term “Firearm” Under the Federal Law

The federal firearm definition is as follows:

• A weapon created to eject a projectile by using an explosive.
• The receiver and frame of a similar weapon.
• Firearm silencer or muffler.
• Destructive devices.
• Parts or accessories of the above-mentioned.

However, guns categorized as antique guns have an exclusion from the federal definition. The antique firearm applies to the following:

• The production was before 1898.
• Its manufacturer designed it to use black powder instead of fixed ammunition.
• It replicates an actual gun but does not use readily available conventional ammunition.

Federal Law: Definition of a Destructive Device

A destructive device is an explosive or incendiary (toxic gas). It can be any of the following:

• Grenade.
• Rocket.
• Bomb.
• Mine.
• Missile.
• And any similar items.

California Firearm Conviction Impact on Your Rights as an Alien

Illegal gun possession is often not a reason for deportation. Since the law presumes you innocent until proven guilty, the benefit also applies even if the weapon in question was a:

• Rifle.
• Shotgun.
• Handgun.
• Modern, functioning firearm.

When a Gun Offense is  Considered a California Aggravated Felony or a CIMT

Serious firearms crimes could lead to inadmissibility or deportation because they are aggravated felonies and CIMTs.

However, simple gun possession does not fit into the two categories. CIMTs are crimes involving behavior that is base, depraved, or vile. On the other hand, an aggravated felony is a serious offense, and it can include the following:

• Sex.
• Violence.
• Fraud.
• Theft involving massive amounts.

Gun crimes can fit into either classification. And if the crimes also involve controlled substances or bringing other aliens into America, there could be immigration repercussions even if you are not found guilty.

Can Your Gun Conviction Hinder You from Adjusting Your Immigration Status?

Illegal firearm possession does not prevent a non-citizen from obtaining a visa or legal permanent resident status. A gun conviction in California is not a legal basis for becoming inadmissible per INA 212(a), except when your offense is also a CIMT.

Nevertheless, an adjudicating official could consider your firearm offense before determining whether to allow permanent residency.

Aliens seeking to stay in America must contact their attorneys before agreeing to plea bargains or a diversion program to reduce the occurrence of severe immigration repercussions.

Fighting immigration Status Effects Stemming From a Gun Crime

The most effective way to defend against the immigration repercussions of a gun offense is to avoid a conviction. Sometimes, it can involve fighting the criminal case in a trial or your attorney convincing the prosecution to drop your firearm charges or lower them to a lesser crime without potential immigration consequences.

Nevertheless, you can pursue post-conviction remedies if the judge convicts you of a removable crime.

If you are in the United States legally, you have a right to a hearing with an immigration official before deportation. They can also appeal against the deportation order with the Board of Immigration Appeals.

The section below discusses several ways to contest your gun crime conviction.

Post-Conviction Remedies for Gun Offenses

An alien with a firearm crime conviction could have their conviction nullified if it is deemed unfair. Consequently, you can stay in America if there are compelling reasons.

Post-conviction remedies consist of the following:

• Writ of Habeas Corpus

The court will grant this legal relief if there is evidence of severe mistakes in the criminal procedure, including the following:

1. Ineffective legal assistance.
2. Violation of search and seizure regulations.
3. Confession by coercion.
4. Prosecutor misconduct.

A Motion to Vacate Your Conviction

You can petition to vacate your conviction if you were found guilty in a California federal court. The legal basis for vacating a sentence is the same as for habeas corpus relief.

• Asylum and Withdrawing Your Deportation Following a Gun Conviction

An immigrant with a conviction for a gun crime can qualify for United States asylum. You could be granted asylum if you would face government persecution after your deportation to your home country due to your:

1. Religion.
2. Nationality.
3. Race.
4. Political affiliation, political beliefs, or
5. Ascribing to a specific social grouping.

You should apply for asylum within a year of reaching the United States.

Nevertheless, you are ineligible for asylum if your gun crime is a particularly severe offense. Per American law, particularly serious offenses include the following:

1. Aggravated felonies.
2. Felonies, for which a defendant received an average sentence of five years or longer.

• The United Nations Convention Against Torture (CAT) Protection

Individuals who are more likely to face torture or persecution could receive mandatory protection from deportation to their original country, per the U.N. Convention against Torture and Other Cruel (CAT), Inhuman Treatment, or Punishment.

Please note that you do not qualify if you were convicted of a particularly serious or violent crime. An offense is less severe if its incarceration term is less than five years.

It is worth noting that CAT protection does prevent your deportation from the U.S. altogether. It only stops the immigration officials from taking you to a particular country, where they could face torture or persecution.

To learn more about this relief, please consult with your experienced immigration lawyer.

• T and U Visas for Serious Offenses and Human Trafficking Victims

You can qualify for a T and U visa if you are a non-citizen and a victim of a serious crime like domestic violence, sexual assault, or human trafficking.

To qualify, you should cooperate with the police to analyze and charge the offense(s).

T and U visas temporarily permit those eligible to stay in the United States; Four years is the usual visa period. Subject to specific conditions, T and U visa holders could become legal permanent residents after residing in the U.S. for three years.

Removal After an Expunged Firearm Conviction

A conviction’s expungement does not erase your conviction for purposes related to immigration. You can still face deportation even after expunging your firearm criminal conviction.

However, there are still advantages to receiving a conviction expungement. One notable benefit is that an expunged criminal conviction does not require disclosure on many job applications.

Pardoning Your Firearm Conviction

A full governor’s pardon will allow you, a legal permanent resident, to remain in the country. A presidential pardon can also prevent your deportation.

However, pardons are challenging and time-consuming, making them an ineffective strategy to fight your deportation.

Plea Bargains that Prevent Almost All Immigration Repercussions

The following crimes are not aggravated felonies if you are sentenced to one year on every account. They are not inadmissible or deportable crimes unless your criminal record shows the victim is under 18, which makes the offense a removable child abuse crime.

The non-deportable offenses are as follows:

• Possessing ammunition.
• If you own an antique gun, highlight it in your records.
• Possession of weapons like brass knuckles, daggers, and blackjack.
• Minor assault and battery where the police record shows the de minimis (The De minimis rule is a common law principle that prevents the law from intervening where matters are extremely immaterial.)
• Rudely displaying a non-gun weapon (If possible, craft a vague account with no gun mention; it will prevent Immigration and Customs Enforcement (ICE) from establishing you are deportable.)
• A felony or misdemeanor battery with injuries where the police report shows de minimis touching.
• Public fighting.
• A non-violent attempt to urge a witness or victim not to inform the police when a one-year sentence has passed.

Pleas Bargains That Prevent Some Immigration Effects

If the above-mentioned pleas are unavailable, consider pursuing the following pleas:

• Pleading to a Non-firearm crime, Even Though it could be a CIMT

Consider pleading guilty to a crime not involving a firearm that is not an automatic removable offense. You can avoid various immigration repercussions from your firearm offense if:

1. The crime is your first plea of guilt to a CIMT.
2. You ensure that your conviction record does not display that the victim was an underage child.
3. You ensure that your record does not indicate that you were in a domestic partnership with the victim if you are charged with a violent crime.

The other plea option without immigration repercussions includes the following:

1. An assault intent while in possession of a lethal weapon — To avoid the offense from becoming a removable gun crime, your attorney should work to ensure there is no mention of a gun. Better still, you should plead to use another weapon other than a firearm; a lethal weapon could include, for example, a brick.
2. Assault using a lethal weapon or force capable of causing bodily injury.
3. Theft, burglary, and receiving stolen goods— Typically, these crimes are aggravated felonies if they carry a one-year prison sentence and become CIMTs.

• Pleas that Avoid Convictions of Gun-Aggravated Felony

A gun crime becomes an aggravated felony when:

1. It is a violent offense that carries at least a one-year prison sentence on each count.
2. It involves trafficking guns or destructive devices for commercial gain.
3. It is comparable to some federal gun crimes, including being an addict, felon, or undocumented immigrant possessing ammunition or a firearm.

The strategies below could lead to a removable gun offense, although your crime does not become a firearm-aggravated felony:

1. Plead guilty to firearm possession, for instance, carrying a gun in concealment or carrying a non-loaded firearm openly instead of a sale, or a crime consisting of trafficking. You can also urge that you gave the gun without commercial intent.
2. Avoid a gun sentence enhancement, which can result in a conviction for an aggravated felony, which is a violent crime. Instead, plead to possess a firearm or an underlying felony crime and take advantage of sentencing procedures to agree to the mandatory time while preventing imprisonment of 1 year or longer on each count.
3. If you were prosecuted for California Penal Code 29800 violations, evaluate the immigration repercussions of the previous crime(s) to avoid receiving a conviction for an aggravated felony. If you decide to plead to Penal Code 29800:
   1. Plead to a misdemeanor gun possession under California P.C. 29800 or plead guilty to P.C. 29805 (convicted of a stated misdemeanor), 29815(a) (individuals with probationary terms prohibiting gun possession), or 29825 (possess, receive, or buy a gun that a temporary restraining order or a permanent order or court injunction prohibits. If the court order is about DV, seek legal aid).
   2. A significant possibility is that accepting a plea deal for violating P.C. 29800 as a drug addict or felon who owns instead of possesses a gun could prevent a California aggravated felony. P.C. Section 29800 is an aggravated felony if it compares to specific federal gun offenses, which consist of possession without ownership. Maintain the conviction record, including the legal grounds for your plea and precise information about your gun access, possession, or control.
4. Avoid a conviction for possession, sale, and conversion of a shotgun, short-barrel rifle, machinegun, or muffler per P.C. 33215, 32625, and 33410. It could be charged as a violent crime, so try to receive a one-year sentence on every count. However, immigration attorneys have strong arguments against this categorization. Possession with a 1-year sentence on every count is not a California aggravated felony, but it still must be prevented. If available, plead instead to P.C. 25400(a) or 26350 for carrying a gun or P.C. 17500 for a weapon.

Why You Might Need a Criminal and Immigration Lawyer

While immigration law and criminal law are different, they are related, and an experienced attorney can come in handy. Here is why:

• An arrest after suspicion of an offense — You can be arrested on little proof as an immigrant because you could be unaware of proper police procedures. Just because you have been arrested for a firearm crime does not automatically mean the ICE will deport you. Your lawyer can explain your legal rights, proof requirements, and police conduct and answer your questions.
• Preserving your immigration status — Your firearm conviction can impact your ability to live in the U.S. and pending citizenship. Your attorney can carefully examine your charges to analyze how your future will be affected and determine the best option(s).
• Pleading guilty — Sometimes, immigrants are pressured to plead guilty to offenses they have not committed. Your attorney can challenge your plea agreement if you are unaware of the consequences of pleading guilty, preventing deportation based on the agreement.

Find an Experienced Immigration Lawyer Near Me

Suppose you have received a notice to appear in immigration court for your deportation hearing. In that case, it is wise to consult a competent immigration lawyer to safeguard your future, life, and rights. Facing deportation is frightening, as you can be separated from your family and cause financial hardship for your relatives, especially if you are the breadwinner. It is also serious because it can prevent you from returning to America.

At California Immigration Attorney, we can analyze your firearm criminal case to develop individualized, viable legal defenses and determine your legal options. With our experience in immigration law, we can assist you in obtaining a favorable case outcome. Please call us at 424-789-8809 to schedule your initial free consultation.