Adjustment Of Status/Immigration and handling of a firearm

[PILMAN]

This question is in regards to my father in law.

To provide some background story, my father in law is a Colombian citizen, he has a tourist visa (nonimmigrant). My wife is a naturalized American Citizen, I am a born American Citizen.

I am not a lawyer, however I am aware that the federal law prohibits a person on a nonimmigrant visa from purchasing or possessing firearms with exceptions such as having a hunting permit issued from a state and apparently the understanding is that this allows such person to rent a firearm at a range (does not make clear if it allows someone else to loan the firearm).

The specific issue is that I am not sure in my father in laws case if this would satisfy the requirements, my father in law became stuck here during COVID 19 unable to leave back to Colombia as a result of all airports preventing travel back to the country or entry. My wife advised me she spoke with someone at immigration informing from my understanding that her father could either apply for a temporary extension or an adjustment of status as she has the right to sponsor an immediate family member.

When entering the US I believe there is an I94 number that grants how long someone can remain in the US. We made sure to fill out the adjustment of status prior to any status expiring which under that assumption he would not be considered unlawful as it is a pending process that can take several months before a green card is issued.

I was reading a case (again I am not a lawyer so I cannot interpret law) and there was a similar case albeit different

https://law.justia.com/cases/federal/appellate-courts/F3/479/1153/589404/

In the case it seems to mention some differences to my concerns, this person seems to have gone out of status and so I do not know if this relates.

As a result, I have not allowed my father in law to handle any of my firearms until we resolve the issue which has created some frustration from friends/family that I am being overly strict, I have spoke with a lawyer who advised me that handling of the firearms is not possession if I am present as the firearm is apparently not transferred at that point (similar to how children cannot possess a firearm but may handle one under an adults supervision).

I understand that taking advice from strangers on the internet will not resolve this but maybe some resources could help. Additionally I was surprised to hear many gun shops and ranges appear unaware of the restrictions for non immigrants admitted under a visa.

 

[DocRock]

This question is in regards to my father in law.

To provide some background story, my father in law is a Colombian citizen, he has a tourist visa (nonimmigrant). My wife is a naturalized American Citizen, I am a born American Citizen.

I am not a lawyer, however I am aware that the federal law prohibits a person on a nonimmigrant visa from purchasing or possessing firearms with exceptions such as having a hunting permit issued from a state and apparently the understanding is that this allows such person to rent a firearm at a range (does not make clear if it allows someone else to loan the firearm).

The specific issue is that I am not sure in my father in laws case if this would satisfy the requirements, my father in law became stuck here during COVID 19 unable to leave back to Colombia as a result of all airports preventing travel back to the country or entry. My wife advised me she spoke with someone at immigration informing from my understanding that her father could either apply for a temporary extension or an adjustment of status as she has the right to sponsor an immediate family member.

When entering the US I believe there is an I94 number that grants how long someone can remain in the US. We made sure to fill out the adjustment of status prior to any status expiring which under that assumption he would not be considered unlawful as it is a pending process that can take several months before a green card is issued.

I was reading a case (again I am not a lawyer so I cannot interpret law) and there was a similar case albeit different

https://law.justia.com/cases/federal/appellate-courts/F3/479/1153/589404/

In the case it seems to mention some differences to my concerns, this person seems to have gone out of status and so I do not know if this relates.

As a result, I have not allowed my father in law to handle any of my firearms until we resolve the issue which has created some frustration from friends/family that I am being overly strict, I have spoke with a lawyer who advised me that handling of the firearms is not possession if I am present as the firearm is apparently not transferred at that point (similar to how children cannot possess a firearm but may handle one under an adults supervision).

I understand that taking advice from strangers on the internet will not resolve this but maybe some resources could help. Additionally I was surprised to hear many gun shops and ranges appear unaware of the restrictions for non immigrants admitted under a visa.

You did the right thing in seeking a legal opinion from a qualified attorney. It is an approach that I urge you to continue to take.

 

[Frank Ettin]

First, extending your father-in-laws visa will not help with regard to his disqualification from lawfully possessing firearms or ammunition. No foreign national present in the United States, whether lawfully or unlawfully, may have possession (dominion and control) of a firearm or ammunition unless he is present in the United States on an immigrant visa (or satisfies one of the other few exceptions which I'll outline later).

...I have spoke with a lawyer who advised me that handling of the firearms is not possession if I am present as the firearm is apparently not transferred at that point (similar to how children cannot possess a firearm but may handle one under an adults supervision).....

That is not correct. Under applicable, federal law having access to a firearm or ammunition is "possession."

1. Possession means:
   

   1 a : the act of having or taking into control...

   
   If you have something in your hands, you have control of it, and therefore possession of it.
   
   Courts will look at the common meanings of words (Perrin v. United States, 444 U.S. 37 (United States Supreme Court, 1979), at 42):
   

   ...A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning...

   
   
2. And let's see what some federal courts have said:
   
   • U.S. v. Booth, 111 F.3d 1 (C.A.1 (Mass.), 1997, at 1):
     

     ...The law recognizes two kinds of possession, actual possession and constructive possession.... Even when a person does not actually possess an object, he may be in constructive possession of it. Constructive possession exists when a person knowingly has the power and the intention at a given time of exercising dominion and control over an object or over the area in which the object is located. The law recognizes no distinction between actual and constructive possession, either form of possession is sufficient. Possession of an object may be established by either direct evidence or by circumstantial evidence. It is not necessary to prove ownership of the object,...

     
     
   • See also U.S. v. Barron-Rivera, 922 F.2d 549 (C.A.9 (Wash.), 1991) in which Barron-Rivera's conviction for being an alien in possession of a firearm was affirmed without him even having had to touch a gun. Barron-Rivera's claimed reversible error in that the government failed to prove the necessary intent.
     
     The court of appeal noted, at 551:
     

     ...Barron-Rivera argued that the gun was in his wife's residence at the time he re-entered the United States and moved back into that residence. Accepting that contention, the district court, nonetheless, found that Barron-Rivera's possession of the firearm was voluntary because he permitted the firearm to remain in the house after he acquired knowledge of its presence....

     
     In affirming the conviction, the court of appeal found, at 551 -- 552:
     

     ...In other words, by continuing to reside in the apartment in which the gun was located, he voluntarily and knowingly possessed the gun...

     
     
   • See, also, United States v. Huet, 665 F.3d 588 (3rd Cir., 2012), in which the gun a prohibited person was charged with illegally possessing was not secured against the prohibited person's access, supporting both the prohibited person's conviction for unlawful possession of a gun and the indictment of his cohabitant. From the opinion (at pg. 593, emphasis added):
     

     ...on June 6, 2008, a valid search warrant (the “search warrant”) was executed on the couple‟s Clarion County home. Agents seized an SKS, Interordnance M59/66 rifle (“SKS rifle”) from an upstairs bedroom.
     
     Although Huet is legally permitted to possess a firearm, Hall was convicted in 1999 of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and is therefore prohibited from owning or possessing a firearm. After being informed of the raid, Huet allegedly told investigators that the guns in the house belonged to her and that it was not illegal for her to purchase weapons. Despite Huet‟s assertions that she alone possessed the SKS rifle, the Government sought and obtained an indictment charging Hall with illegal possession of the weapon, and Huet with aiding and abetting Hall‟s possession....

     So the gun Hall, a convicted felon, was indicted for unlawfully possessing, belonged to his cohabitant, Huet. It appears to have been undisputed that Huet could lawfully possess firearms. Nonetheless, she was indicted for aiding and abetting Hall's unlawful possession of gun because Huet's gun wasn't secured against access by Hall.
   
   
3. So for a person who is prohibited under federal law from possessing a gun or ammunition, he is violating the law if he has a gun or ammunition in his hands or otherwise under his control, or he has access to a gun or ammunition and thus can exert control over the gun or ammunition.

Here are the applicable federal statutes (18 USC 922(g)(5)):

(g) It shall be unlawful for any person—

(1) …

(2) …

(3) …

(4) …

(5) who, being an alien—

(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));​

(6) …

(7) …

(8) …

(9) …​

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

and 18 USC 922(y):

(y) Provisions Relating to Aliens Admitted Under Nonimmigrant Visas.—

(1) Definitions.— In this subsection—

(A) the term “alien” has the same meaning as in section 101(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(3)); and

(B) the term “nonimmigrant visa” has the same meaning as in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)).​

(2) Exceptions.— Subsections (d)(5)(B), (g)(5)(B), and (s)(3)(B)(v)(II) do not apply to any alien who has been lawfully admitted to the United States under a nonimmigrant visa, if that alien is—

(A) admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States;

(B) an official representative of a foreign government who is—

(i) accredited to the United States Government or the Government’s mission to an international organization having its headquarters in the United States; or

(ii) en route to or from another country to which that alien is accredited;​

(C) an official of a foreign government or a distinguished foreign visitor who has been so designated by the Department of State; or

(D) a foreign law enforcement officer of a friendly foreign government entering the United States on official law enforcement business.​

So an alien legally in the United States on a non-immigrant visa may not possess a gun or ammunition unless he satisfies one of the exception set out in 18 USC 922(y), quoted above.

 

[PILMAN]

...

 

[Frank Ettin]

...The one case I wanted to comment on was

United States vs Barron Rivera....

What is your point?

First, while it's true that Barron-Rivera was disqualified from lawfully possessing guns or ammunition because he was in the U. S. illegally, the nature of that disqualifying condition is not material. 18 USC 922(g) lists a number of disqualifying conditions, but I've seen no case law to suggest that what facts constitute unlawful possession varies among those various disqualifying conditions. In other words, whether one is disqualified because of a past felony conviction, the unlawful use of a controlled substance, being a foreign national present in the U. S. on a nonimmigrant visa, or any of the other listed conditions, what would constitute unlawful possession doesn't change.

Second, the three cases I cited are connected by a common thread -- possession, whether actual or constructive, as outlined in U.S. v. Booth, 111 F.3d 1 (C.A.1 (Mass.), 1997, at 1):

....Even when a person does not actually possess an object, he may be in constructive possession of it. Constructive possession exists when a person knowingly has the power and the intention at a given time of exercising dominion and control over an object or over the area in which the object is located. The law recognizes no distinction between actual and constructive possession, either form of possession is sufficient. Possession of an object may be established by either direct evidence or by circumstantial evidence. It is not necessary to prove ownership of the object,...

As long as your firearms are locked up and secure against access by your father-in-law, it's highly unlikely that he could be determined to have "possession." But unless he (1) sorts out his visa situation; and (2) has a hunting license or otherwise is exempted under 18 USC 922(y), both he and you would have legal exposure were you to give him access to a gun or ammunition, even if in your presence and under your supervision.

 

[PILMAN]

What is your point?

First, while it's true that Barron-Rivera was disqualified from lawfully possessing guns or ammunition because he was in the U. S. illegally, the nature of that disqualifying condition is not material. 18 USC 922(g) lists a number of disqualifying conditions, but I've seen no case law to suggest that what facts constitute unlawful possession varies among those various disqualifying conditions. In other words, whether one is disqualified because of a past felony conviction, the unlawful use of a controlled substance, being a foreign national present in the U. S. on a nonimmigrant visa, or any of the other listed conditions, what would constitute unlawful possession doesn't change.

Second, the three cases I cited are connected by a common thread -- possession, whether actual or constructive, as outlined in U.S. v. Booth, 111 F.3d 1 (C.A.1 (Mass.), 1997, at 1):

​

As long as your firearms are locked up and secure against access by your father-in-law, it's highly unlikely that he could be determined to have "possession." But unless he (1) sorts out his visa situation; and (2) has a hunting license or otherwise is exempted under 18 USC 922(y), both he and you would have legal exposure were you to give him access to a gun or ammunition, even if in your presence and under your supervision.

I appreciate that, I did not want to come off as challenging you or what is stated and I do see this as definitely an issue, and for this reason why I have been cautious about who is able to handle or touch my weapons out of concern but I agree with you that it may be best to get the hunting permit so that it would at least provide some cover for him.

 

[PILMAN]

I wanted to add in addition, my wife mentioned he was issued an alien number but pending request for evidence. I was recommended by my lawyer to get him the hunting permit so at least even if he comes in contact with a firearm or ammo somehow that it would satisfy the requirement but still trying to figure out his status as he is not declared unlawful as he entered legally but I think the best case scenario is to continue what I have been doing and that is to leave the firearms locked and inaccessible (in my presence only).

Also any idea on this?

https://www.google.com/url?sa=t&sou...FjADegQIIRAB&usg=AOvVaw1LFzsP4TlS99iIMHsSYriX

 

[Sebastian the Ibis]

As Frank said, get a real immigration lawyer. It seems like you want to get your father in law here permanently. You need someone to get can sort through his overstay situation and get that waived. Don’t screw around with it, or he will get barred. And just keep him away from the guns, no buck/turkey/whatever is worth being separated from your daughter.

 

[Armybrat]

So, a foreigner who is just a tourist cannot shoot a firearm under supervision?

 

[Jim Watson]

So those Japanese "shooting tourists" are here specifically for a "lawful sporting purpose?"

 

[tlynch]

So those Japanese "shooting tourists" are here specifically for a "lawful sporting purpose?"

"...or is in possession of a hunting license or permit lawfully issued in the United States;"

 

[MedWheeler]

Armybrat asks:

So, a foreigner who is just a tourist cannot shoot a firearm under supervision?

Not unless he or she has jumped through one of the few hoops available, such as the aforementioned hunting/sporting activities permit processes.

 

[Tommygunn]

I'm confused; I hear about Japanese tourists in Las Vegas (or Reno?) shooting even full-auto at ranges where you can rent them for a few minutes of ballistic fun. What gives?? - - - or is this myth?

 

[Frank Ettin]

So, a foreigner who is just a tourist cannot shoot a firearm under supervision?

So those Japanese "shooting tourists" are here specifically for a "lawful sporting purpose?"

I'm confused; I hear about Japanese tourists in Las Vegas (or Reno?) shooting even full-auto at ranges where you can rent them for a few minutes of ballistic fun. What gives?? - - - or is this myth?

The federal statutes say what they say; and even if the Justice Department has apparently not been vigorously pursuing prosecution, it doesn't mean that the policy can't or won't change. Nor did the current, apparent lack of enforcement stop federal prosecutors from bringing charges against a couple of guys from Saudi Arabia for renting guns in San Diego County.

The bottom line --

1. A foreign national who (1) is not an immigrant with permanent residence status and a "green card"; or (2) does not have a hunting license of fall within one of the other exceptions set out in 18 USC 922(y); or (3) who is not legally present in this country without a visa under the terms of the Visa Waiver Program*, commits a serious, federal crime if he has a gun or ammunition in his hand. The penalty for that crime is up to ten years in federal prison (18 USC 924) -- and, most likely, deportation.
   
   
2. Someone who helps such foreign national thus possess a gun or ammunition, if he knows or has reasonable cause to believe that such foreign national is disqualified under federal law from possessing a gun or ammunition, commits the crime of aiding and abetting the violation of 18 USC 922(g)(5); and that crime is also punishable by up to ten years in federal prison (18 USC 2). Conviction of that crime will also result in the lifetime loss of gun rights.

A number of people posted in that thread about foreign tourists shooting at local ranges. But one can not reliably infer what the law is from such observations. While it appears to be true that foreign tourists may be shooting at local ranges, that doesn't change what the law is. All it means is (1) the range has made the effort to assure that the foreign tourist shooting falls within one of the 18 USC 922(y) exceptions; or (2) that the range doesn't understand the law and everyone is lucky because it appears that the Department of Justice isn't at present vigorously enforcing 18 USC 922(g)(5) under some circumstances.

A reason one may not infer what the law is by observing whether certain conduct results in prosecution is the doctrine of prosecutorial discretion:

The term "prosecutorial discretion" refers to the fact that under American law, government prosecuting attorneys have nearly absolute and unreviewable power to choose whether or not to bring criminal charges, and what charges to bring, in cases where the evidence would justify charges. This authority provides the essential underpinning to the prevailing practice of plea bargaining, and guarantees that American prosecutors are among the most powerful of public officials. It also provides a significant opportunity for leniency and mercy in a system that is frequently marked by broad and harsh criminal laws, and, increasingly in the last decades of the twentieth century, by legislative limitations on judges' sentencing discretion .....

So perhaps the prosecution of these violations is a low priority. That doesn't mean such will always be the case, and the U. S. Attorney could decide to prosecute a case for any reason or for no reason. The reality is that under the law as written and as applied by the courts many of these cases could be successfully prosecuted, and one can't necessarily rely on the continued disinterest of the U. S. Attorney.
___________________
*There is a program under which a foreign national from one of a number of participating countries my enter the United States for a limited period of time without a visa.

ATF (see Q5 and Q6) has decided that lawfully entering the United States as a non-immigrant when permitted without a visa is not the same as entering with a non-immigrant visa, and therefore such a non-resident alien in not subject to the 18 USC 922(g)(5) prohibition. It looks like this ATF interpretation was made around 2012.

 

[Jim Watson]

A number of people posted in that thread about foreign tourists shooting at local ranges. But one can not reliably infer what the law is from such observations. While it appears to be true that foreign tourists may be shooting at local ranges, that doesn't change what the law is. All it means is (1) the range has made the effort to assure that the foreign tourist shooting falls within one of the 18 USC 922(y) exceptions; or (2) that the range doesn't understand the law and everyone is lucky because it appears that the Department of Justice isn't at present vigorously enforcing 18 USC 922(g)(5) under some circumstances.

I would hope that the Shooting Tourists stated on their visa applications that they were in fact visiting for the purpose of a shooting event so that they and the range would be in compliance (1).

But I really doubt that the Giggling Oriental Coeds I have seen at rental ranges planned and stated it in advance (2).

I was squadded with a German cop at an IDPA state championship. He said he had saved up all his holiday time and traveled to the US to enter as many matches as possible. I did not know of the restrictions at the time and probably would not have been so nosy as to inquire if I had.

 

[Armybrat]

Thanks Frank, I was totally unaware of those restrictions.

But seeing as how the DOJ says they do not have the capacity to prosecute the thousands of criminals who lie on the 4473 forms every year, it’s pretty obvious they won’t be hanging out at all the “destination” gun ranges to arrest uninformed foreign tourists and the enabling range staff.

 

[Frank Ettin]

...seeing as how the DOJ says they do not have the capacity to prosecute the thousands of criminals who lie on the 4473 forms every year, it’s pretty obvious they won’t be hanging out at all the “destination” gun ranges to arrest uninformed foreign tourists and the enabling range staff.

Which still means that for some reason or another the DOJ might decide to prosecute someone. One just won't know in advance who or why.

 

[Armybrat]

There is always that small chance. I could win the Powerball too.

 

[Frank Ettin]

There is always that small chance. I could win the Powerball too.

So on one hand you can spend a couple of dollars and a get a tiny chance of winning a bunch of money that could, possibly, greatly improve your life.

On the other hand, you can take a foreign national shooting with your guns and ammunition and get a tiny chance of pretty much completely ruining your life -- getting prosecuted for a serious federal crime, dissipating your money paying legal bills, losing your job, and perhaps going to prison and losing your guns and your gun rights.

So with the Powerball, there's a small downside, i. e., the cost of a ticket, but there's tiny chance of a huge upside.

With violating the Gun Control Act, there's a small upside, i. e., an afternoon at the range with someone, but there's tiny chance of a huge downside. Personally, I have too much to lose to knowingly risk even a tiny chance of prosecution.

 

[Jim Watson]

Sorry there, Ivan Skavinsky Skivar and you too, Abdullah the Bulbul Amir, it is illegal for me to show you the freedom of private pistol possession in the USA.