On March 3, 2017, the Board of Immigration Appeals (BIA or Board) held that the offense of transporting a loaded firearm in violation of Title 21, Section 1289.13 of the Oklahoma Statutes qualifies as a firearms offense per INA §237(a)(2)(C), thus making one convicted of said crime ineligible for cancellation of removal under INA §240(b)(1)(C).
The BIA began its opinion by noting that §237(a)(2)(C) makes removable one who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing or carrying (or of attempting one of these acts) any firearm or destructive device, while referencing respondent’s contention that because “transporting” does not include “possessing” or “carrying” a firearm, Congress did not intend his crime to fell within the purview of §237(a)(2)(C).
The decision notes the INA’s use of the expansive term “any” and the “comprehensive list” of firearms transactions covered, making it clear Congress intended to embrace all firearms offenses under §237(a)(2)(C), a view – the BIA wrote – that has been upheld repeatedly by the Federal courts of appeal. In this regard, the Board quoted Federal caselaw on to how “possessing” and “possess” in §237(a)(2)(C) include constructive possession of a firearm. In this regard, found the Board, because respondent knowingly transported a firearm in his vehicle, he necessarily had constructive “possession” of it for purposes of the INA. Further, stated the BIA, it is illogical for unlawful possession to fall within §237(a)(2)(C)’s scope but for unlawful transportation of the same loaded weapon to be excluded.
As the Board found that the statute’s legislative history support its conclusion, it held that the crime of transporting a loaded firearm under Oklahoma law is categorically a firearms offense under the INA rendering respondent ineligible for cancellation relief and dismissed the appeal. Matter of Flores-Abarca, 26 I&N Dec. 922 (BIA 2017).