PC 29800

PC 29800

Offense

Felon, addict, etc. who possesses or owns a firearm

Aggravated Felony (AF)

Not AF due to antique firearms rule; see below and see also 29805, 29815(a), 29825.

Crime Involving Moral Turpitude (CIMT)

Should not be CIMT but no precedent. Possession of even a sawed-off shotgun is not a CIMT, so arguably possession by a particular person of a ‘regular’ firearm is not, as this is a regulatory offense.

Other Removal Grounds

Not deportable firearms offense due to antique firearms rule.

Advice and Comments

Antique Firearms Rule: A noncitizen who is convicted of a firearms offense (selling, carrying, using, possessing, etc.) is deportable.1See 8 USC § 1227(a)(2)(C). In addition, the definition of aggravated felony (AF) includes state offenses that are analogous to certain federal firearms offenses (including felon in possession of a firearm), as well as trafficking in firearms.2See 8 USC § 1101(a)(43)(C). However, the state definition of firearm must match the federal. The applicable federal definition specifically excludes antique firearms, while PC 16520(a) (formerly 12001(b)) does not exclude them, and has been used to prosecute antiques.3An antique is defined as a firearm made in 1898 or earlier, plus certain replicas. 18 USC § 921(a)(3), (16). The Ninth Circuit held that no conviction of an offense that uses the definition at PC 16520(a) or former 12001(b) is a deportable firearms offense or a firearms AF. This is true even if the firearm involved in the particular case was not an antique.4Conviction of an offense involving a federally defined “firearm” can trigger deportability under 8 USC § 1227(a)(2)(C). Some state firearms offenses are aggravated felonies, including trafficking in firearms and analogues to federal firearm offenses such as being a felon in possession, as long as the offense involves a federally defined firearm. 8 USC § 1101(a)(43)(C). The federal definition of firearm specifically excludes an antique firearm, defined as a firearm made in 1898 or earlier, plus certain replicas. 18 USC § 921(a)(3), (16). In U.S. v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014), the court held that conviction of a California firearms offense does not come within the firearms deportation ground, and is not a firearms aggravated felony, if antique firearms ever have been prosecuted under that statute—even if the defendant used a non-antique firearm. Further, this rule applies to any conviction under any California statute that uses the definition of firearm at Pen C § 16520(a), formerly § 12001(b). Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014) (“We hold that Aguilera-Rios applies to any California statute based on the definition of ‘firearm’ formerly appearing at § 12001(b).”) Since 2012, the definition of firearms at § 12001(b) was moved to § 16520(a), with no change in meaning. Because PC 29800 uses the PC 16520(a) definition, it is neither an AF nor a deportable firearms offense. Note, however, that 16520(d) lists offenses that do not include “unloaded antique firearms” so the antique firearms rule might not apply to these offenses, and 16520(f) offenses explicitly use the federal firearms definition, and would fall outside the antique firearms rule.

As with many crim/imm defenses, Congress could eliminate this defense by changing the federal statute, and conceivably could apply the change retroactively to past convictions. When a good option exists, it is best to avoid firearms convictions even though the law is currently favorable. But as long as the statute is not changed, this defense is approved by the Supreme Court and case law will not change it. As always, D’s best defense against a future change in the law is to naturalize to U.S. citizenship, after obtaining expert advice from a crim/imm specialist that it is safe to apply.

Further AF protection: In case the antique firearms rule ever is lost, another option is to give D possible further protection from an AF by pleading to being a felon who owns rather than possesses a firearm.5See U.S. v. Pargas-Gonzalez, 2012 WL 424360, No. 11CR03120 (S.D. Cal. Feb. 9, 2012) (concluding that former Pen C § 12021(a) is not categorically an aggravated felony as an analog to 18 USC § 922(g)(1) (felon in possession) because § 12021 is broader in that it covers mere ownership of guns by felons), citing U.S. v. Casterline, 103 F.3d 76, 78 (9th Cir. 1996) in which the court reversed conviction under § 922(g)(1) where defendant owned a firearm but was not in possession at the alleged time. Like the former § 12021(a), the current § 29800 prohibits owning a firearm. In addition, do not identify a specific firearm in ROC.

2020-05-19T19:59:17+00:00Updated January 29th, 2020|