Former PC 12020 Repealed 1/1/12 See current 16590 for list of individual statutes, by weapon, previously prohibited by 12020

Former PC 12020 Repealed 1/1/12 See current 16590 for list of individual statutes, by weapon, previously prohibited by 12020

Offense

Possession manufacture, sale, of various prohibited weapons; carrying concealed dagger

Aggravated Felony (AF)

Sale of a federally defined firearm would be an AF but see Advice.

Possessing or carrying a weapon is not an AF (but is a deportable firearms offense.)

Crime Involving Moral Turpitude (CIMT)

Weapon possession is not a CIMT.1Possession of even a sawed-off shotgun has been held not to be a CIMT. See, e.g., Matter of Hernandez-Casillas, 20 I&N Dec. 262, 278 (BIA 1990); Matter of Granados, 16 I&N Dec. 726 (BIA 1979).

Sale is unclear as a CIMT. Mere failure to comply with licensing requirement may not be CIMT.2See, e.g. Ali v. Mukasey, 521 F.3d 737, 740 (7th Cir. 2008) (unlicensed trafficking of firearms should not be a CIMT if it is a mere failure to comply with licensing or documentation requirements); cited with approval in Efagene v. Holder, 642 F.3d 918, 923 (10th Cir. 2011).

Other Removal Grounds

Possession of a firearm under this statute is a deportable firearm offense. See Advice.

Advice and Comments

Firearms. Trafficking in firearms is an AF, as well as a deportable firearms offense, if the state definition of firearm matches the federal definition. Here the definition of firearm appears to match: “firearm” defined in former 12020 and16590/17700 excludes antique firearms, just as the federal definition does. (Many California offenses do include antique firearms, and therefore do not have immigration consequences. See discussion at PC 29800.)

However, former 12020 includes other conduct that does not have imm consequences, such as possessing a dagger, etc. In addition, even if the offense is held to be a firearm offense, 12020 included possession of a firearm, which at least would not be an aggravated felony. Immigration advocates can explore arguments that 12020 was indivisible as to weapon or conduct. See n. 4, above, on the categorical approach. Or assuming it was divisible, see endnote for effect of information in the ROC.3Conviction of former § 12020 for possession of a dirk, dagger, or other weapon that is not a firearm does not have immigration consequences, but a § 12020 conviction relating to a firearm is a deportable firearms offense and, if involved trafficking, is a firearms aggravated felony under 8 USC § 1101(a)(43)(C). This is true only if the statute is actually divisible as to the type of weapons and/or conduct.

If § 12020 is held to be “divisible” as to the weapon, then the immigration authority can review the person’s record of conviction (ROC) to see if it establishes whether a firearm was the subject of their conviction. If the ROC identifies a specific non-firearm weapons (e.g., a dirk), then the conviction is not of a deportable firearms offense or an aggravated felony for any immigration purpose. If the ROC is vague as to the weapon (e.g., tracks the language of the statute, or the record was destroyed), then under the current rule in the Ninth Circuit, the conviction will not cause an LPR to become deportable based on a firearms offense because ICE cannot prove the weapon was a firearm, but it will be a firearms offense for the purpose of making an undocumented person, an already-deportable LPR, or other immigrant, ineligible to apply for relief because that person has the burden of proof and must prove the weapon was not a firearm. If the ROC specifically identifies a firearm, it will be a firearms offense for all immigration purposes.

If instead, former § 12020 were held to be “indivisible” as to the weapon, then no conviction would be a firearms offense for any immigration purpose as a matter of law, because the minimum conduct to commit the offense could involve a dagger or other non-firearm.

The same rules regarding the burden of proof would apply if § 12020 were to be held divisible for conduct, e.g., between possession and sale of a firearm, where possession is a deportable firearms offense but not an AF, and sale is both.

For more on the categorical approach and divisible statutes, see n. 4, above, or get expert help.

Misd is a “significant misdemeanor” for DACA, DAPA, enforcement priorities if it is held to involve a firearm; see note at PC 25400.

2020-05-19T19:24:00+00:00Updated January 29th, 2020|