Interim Decision #3275
(1) Where the statute under which an alien has been convicted encompasses offenses that constitute firearms violations and offenses that do not, the Board of Immigration Appeals will look beyond the statute, but only to consider such facts which appear from the record of conviction, or other documents admissible under federal regulations as evidence in proving a criminal conviction, to determine whether the specific offense for which the alien was convicted constitutes a firearms violation within the meaning of section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (1994). (2) Where the only criminal court document offered into the record to prove an alien’s deportability under section 241(a)(2)(C) of the Act consists of a Certificate of Disposition which fails to identify the subdivision under which the alien was convicted or the weapon that he was convicted of possessing, deportability has not been established, even where the alien testifies that the weapon in his possession at the time of his arrest was a gun, since it is the crime that the alien was convicted of rather than a crime that he may have committed which determines whether he is deportable.
Can a conviction for criminal possession of a weapon in the third degree constitute clear, unequivocal, and convincing proof of a respondent’s deportability under section 241(a)(2)(C) of the Act, where the identity of the weapon that he was convicted of possessing and the subdivision of the law under which he was convicted cannot be ascertained from the conviction document that was offered into evidence and made a part of the record.
What constitutes a firearms offense