SAR 20#2

2. Aliens Admitted to the United
States under a Nonimmigrant Visa–
§ 922(g)(5)(B)
Congress added the disability for persons
who enter the United States under
a nonimmigrant visa to the GCA in 1998.
The plain language of the statute limits
the prohibition to persons who enter the
United States with a nonimmigrant visa.
However, when ATF issued implementing
regulations in 2002, the agency interpreted
the prohibition to apply to ALL
nonimmigrants, whether or not they entered
the United States with a visa. This
is a significant expansion of the statutory
prohibition, as many foreign visitors are
not required under the Immigration and
Nationality Act to present a visa when
entering the United States. Canadian
citizens are the biggest category, as well
as persons from countries in the Visa
Waiver Program (VWP). Information on
the VWP, including a list of participating
countries, can be found on the Department
of State website.
In 2011, the Department of Justice’s
Office of Legal Counsel (OLC) advised
ATF that the agency’s interpretation of
the nonimmigrant alien prohibition was
overly broad. OLC advised ATF that the
prohibition does not apply to all nonimmigrant
aliens present in the United
States, but only those aliens admitted
to the United States under a nonimmigrant
visa. Subsequently on December
8, 2011, ATF posted an Open Letter to
All Federal Firearms Licensees on its
website advising that, in accordance
with direction from OLC, the agency was
changing its interpretation of the law so
that most Canadian visitors in the United
States and aliens admitted under the
Visa Waiver Program would no longer
be prohibited from possessing firearms
under the GCA. On June 7, 2012 (77 FR
33625), ATF amended its regulations to
reflect this position.
The disability for nonimmigrant aliens
present in the United States pursuant to
a nonimmigrant visa has a number of
statutory exceptions. The exceptions,
listed in 18 U.S.C. § 922(y)(2), include
the following:
• aliens admitted to the United
States for lawful hunting or sporting
purposes (e.g., an organized
shooting competition);
• aliens in possession of a hunting
license or permit lawfully issued in
the United States;
• official representatives of a foreign
government who are accredited to
the United States Government or
the Government’s mission to an
international organization headquartered
in the United States;
• officials of a foreign government
or a distinguished foreign visitor
so designated by the Department
of State; and
• foreign law enforcement officers
of a friendly foreign government
entering the United States on official
law enforcement business.
The easiest exception to satisfy is
the hunting license exception. Any alien
may easily avoid the prohibitions of the
statute by obtaining a hunting license
from any State, and the possession of
firearms or ammunition need not be in
the State where the hunting license was
issued. This exception has been criticized
because of its ease in avoiding the
statutory disability.
The GCA also includes a “waiver”
provision that allows a nonimmigrant
alien to apply for a waiver from the restrictions
of the statute by submitted a
petition to the Attorney General. We
note, however, that neither ATF nor
the Department of Justice have published
regulations or any other guidance
implementing the waiver provisions.
Consequently, it is likely easier and
more expedient to obtain a hunting license
than to submit a petition to the
Department of Justice.
Even if a nonimmigrant alien fits
within an exception listed above, the
alien may not lawfully purchase a firearm
from a Federal firearms licensee
unless he or she (1) has a valid alien admission
number issued by the Department
of Homeland Security (required
on the Form 4473); and (2) is able to
provide documentation that he or she
is a resident of the State where the
FFL is located.
B. Persons Dishonorably Discharged
from the U.S. Armed Forces- 18
U.S.C. § 922(g)(6)
This provision of the GCA has been
in the statute since 1968, but was not
defined in the regulations until 1997.
The term “discharged under dishonorable
conditions” is defined in 27 C.F.R.
§ 478.11 as “Separation from the U.S.
Armed Forces resulting from a dishonorable
discharge or dismissal adjudged
by a general court-martial. The term
does not include any separation from
the Armed Forces resulting from any
other discharge, e.g., a bad conduct discharge.”
ATF also does not consider a
general discharge as one that results in
Federal firearms disabilities.
C. Persons Who Have Renounced U.S.
Citizenship - 18 U.S.C. § 922(g)(7)
This is a fairly straight-forward category
of prohibited persons and one that
is rarely encountered. That is because it
is fairly difficult to renounce U.S. citizenship
in a way that satisfies the requirements
under the regulatory definition of
“renounced U.S. citizenship.” The definition
requires that a person renounce his
or her citizenship (1) before a diplomatic
or consular officer of the United States in
a foreign country; OR (2) Before an officer
designated by the Attorney General
when the United States is in a state of
war. The first method, requires completion
of a State Department form before
a U.S. consular officer while in a foreign
country. The second method has been
delegated to the Department of Homeland
Security, although the agency has
not issued regulations implementing the
authority. Renunciations of U.S. citizenship
are permanent and irrevocable, absent
an overturn based on involuntariness
or lack of intent. Individuals who
lose U.S. citizenship must reacquire it
through naturalization.
D. Persons Subject to Domestic Violence
Restraining Orders – 18 U.S.C.
§ 922(g)(8)
Congress enacted Section 922(g)
(8) as part of the Violent Crime Control
and Law Enforcement Act of 1994.
The statute prohibits persons subject
to certain domestic violation restraining
orders from receiving or possessing firearms
and ammunition. The disability is
temporary, lasting only as long as the
restraining order is in effect. It applies to
a significant number of persons at any
given time, as restraining orders that
meet the requirements of the statute are
issued by State courts routinely as part
of divorce proceedings.
Not every domestic violence restraining
order issued by a State or tribal court
results in Federal firearms disabilities.
The statute has specific requirements:
• the order was issued after a hearing
of which the person received
notice and had an opportunity to
participate in the hearing;
• the order restrains the person from
harassing, stalking, or threatening
an intimate partner (e.g., spouse,
former spouse, cohabitant) or
child of the intimate partner or
engaging in conduct that would
place the partner in reasonable
fear of bodily injury; and
LEGALLY ARMED
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SAR Vol. 20, No. 2