SAR 20#2

y Teresa G. Ficaretta, Esq.
& Johanna Reeves, Esq.
Legal News from the Nation’s Capital
SAR Vol. 20, No. 2 MARCH 2016
16
GCA Firearms Restrictions—
Who Is a Prohibited Person?
Part II: 18 U.S.C. § 922(g)(5)-(9)
In Vol. 20, No. 1, we provided readers
with an overview of Federal firearms
disabilities imposed under the Gun
Control Act (GCA), 18 U.S.C. Chapter
44. Because there are 10 categories of
“prohibited persons” under the GCA, we
addressed 5 of the disabilities in Part I
of the article, and this article addresses
the remaining 5 disabilities as Part
II. As stated in Part I, it is essential for
Federal firearms licensees (FFLs) to
have a working knowledge of this area
of the law to avoid transferring firearms
or ammunition to prohibited persons
and aiding and abetting a prohibited
person in unlawfully possessing these
items. Caution must be exercised in
this area not just for potential purchasers
of the FFL’s products, but also for
employees who possess firearms and
ammunition for purposes of carrying out
the FFL’s business.
This article will discuss the prohibited
persons described in 18 U.S.C. § 922(g)
(5)-(9), which includes illegal and nonimmigrant
aliens; persons dishonorably
discharged from the military; renunciants
of U.S. citizenship; persons subject
to domestic violence restraining orders,
and persons convicted of misdemeanor
crimes of domestic violence.
I. GCA Categories of Prohibited Persons
§ 922(g)(5)-(9)
A. 18 U.S.C. § 922(g)(5) – Illegal Aliens
and Nonimmigrant Aliens
Section 922(g)(5) includes two separate
and distinct disabilities. The first
applies to “aliens” who are illegally or
unlawfully in the United States. The
second applies to aliens who have been
admitted to the United States under a
nonimmigrant visa, as that term is defined
in the Immigration and Nationality
Act. We will discuss each of these
disabilities separately.
1. Aliens Illegally or Unlawfully in
the United States--§ 922(g)(5)(A)
This provision has been in the GCA
since enactment in 1968, but was not
defined until ATF issued regulations
implementing the Brady Law in 1997.
The regulations provide that the term
“alien illegally or unlawfully in the United
States” means aliens who are not in
valid immigrant, nonimmigrant or parole
status. The definition in 27 § C.F.R. §
478.11 provides examples of aliens included
in the term, such as persons who
enter the United States without presenting
themselves to an immigration officer,
nonimmigrants whose periods of stay
have expired or who violate the terms of
their entry, and persons under a deportation
or removal order.
Questions often arise about aliens
who have applied for adjustment status
and allowed to stay in the United States
while the application is pending. Federal
courts have held that aliens in this
situation still entered the United States
illegally and cannot lawfully possess a
firearm. There is an exception in one
federal circuit involving a case where
an individual filed for and received Temporary
Protected Status. Under these
circumstances that court held such a
person is not an illegal or unlawful alien
under the GCA because he or she is
allowed to remain in the United States
and work in the same manner as a nonimmigrant
alien. See United States v.
Orellana, 405 F.3d 360, 365 (5th Cir.
2005). The Department of Justice does
not extend the rationale of the case
to other circuits.