Any alien who has been admitted to the United States remains subject to the grounds of deportation and can be removed from the United States on those grounds, such as for criminal offenses. An alien is any person who is not a citizen or national of the United States. If the alien is convicted of a firearm offense, he or she can be removed under Immigration and Nationality Act (INA) § 237(a)(2), 8 U.S.C. § 1227(a)(2).
Criminal Grounds of Removal
INA § 237(a)(2) contains the numerous criminal grounds for removal that exist in the Act. These include convictions for a crime of moral turpitude, for an aggravated felony, for a controlled substances offense, for a firearm conviction, and for crimes of domestic violence. The government has the burden of proving that a noncitizen is removable under INA § 237(a), so the government must establish by clear, convincing, and unequivocal evidence that the alien has been convicted of the alleged crime.
Definition of Conviction
Under the INA, a conviction is defined as a formal judgment of guilt entered by a court. A conviction also includes the withholding of adjudication of guilt where:
- A judge or jury has found the alien guilty, or the alien has entered a plea of guilty, or nolo contendere, or has admitted enough facts to warrant a finding of guilt, and
- The judge has ordered some form of punishment, penalty, or restraint on the alien's liberty, including suspended sentences
A conviction that is on direct appeal is not final and may not serve as the basis for removal.
Any alien convicted of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry any firearm is deportable. A conviction for a completed offense is also a ground for removal. The statute includes offenses involving a firearm or other destructive devices, as defined in 18 U.S.C. § 921(a). Destructive devices include such things as explosive, incendiary or poison gas bombs or any kind of weapon, except for guns used for hunting.
It has been held that the imposition of an additional sentence because one of the persons involved in a crime was armed does not constitute a conviction for a firearm offense. However, other courts have held that an alien is convicted of a firearm violation within the aggravated felony definition if the use of a firearm "is in integral element of the crime" or is an "element of the substantive offense."
Questions for Your Attorney
- If I have a firearm offense, is there any way to avoid being removed from the United States?