Can You Get a Green Card With a Gun Conviction?

Key Takeaways

• Almost any gun conviction, including a misdemeanor, makes a person who has been admitted to the United States deportable.
• The criminal grounds that bar a green card do not list gun offenses as such, but a gun conviction can still fall under them, for example as a crime involving moral turpitude or as one of several convictions.
• Some gun offenses, including firearms trafficking and possession by certain prohibited persons, are “aggravated felonies,” which bar most forms of relief.
• The main criminal waiver covers only some grounds and usually requires extreme hardship to a U.S. citizen or permanent resident spouse, parent, son, or daughter.
• A Colorado deferred judgment can still count as a conviction for immigration purposes. Legal counsel should review the record before any application is filed.

What Federal Law Provides

• Gun convictions are a deportation ground. Under 8 U.S.C. 1227(a)(2)(C), a noncitizen who, at any time after admission, is convicted under any law of buying, selling, using, owning, possessing, or carrying a firearm or destructive device, or of attempting or conspiring to do so, is deportable. The statute has no felony requirement and no minimum sentence. “Firearm” and “destructive device” have the meanings given in 18 U.S.C. 921(a).
• Gun offenses are not a separate ground of inadmissibility. The criminal grounds that stop a person from being admitted or receiving a green card are in 8 U.S.C. 1182(a)(2). They include a crime involving moral turpitude, a controlled substance offense, and two or more convictions with combined sentences to confinement of 5 years or more. Gun offenses are not on that list, so a gun conviction blocks a green card on those grounds only if it also fits one of them. A person applying from inside the United States must be admissible, and approval is discretionary, under 8 U.S.C. 1255(a).
• Some gun offenses are aggravated felonies. 8 U.S.C. 1101(a)(43) includes “illicit trafficking in firearms or destructive devices,” offenses described in the federal firearm laws listed there (including possession by the prohibited persons in 18 U.S.C. 922(g)(1) through (5)), and a crime of violence with a term of imprisonment of at least one year. A suspended sentence counts toward that year (8 U.S.C. 1101(a)(48)(B)). An aggravated felony conviction after admission is its own deportation ground under 8 U.S.C. 1227(a)(2)(A)(iii).
• “Conviction” has a broad federal meaning. Under 8 U.S.C. 1101(a)(48)(A), if adjudication of guilt is withheld, a guilty plea still counts as a conviction when the judge has ordered “some form of punishment, penalty, or restraint” on the person’s liberty. A Colorado deferred judgment begins with a guilty plea and carries conditions similar to probation (C.R.S. 18-1.3-102), so it can count as a conviction for immigration purposes even after the charge is dismissed.

Understanding How Gun Convictions Affect Immigration Status

Immigration law sorts criminal convictions into its own categories, and those categories do not match the felony and misdemeanor labels used in state court. For gun convictions, the most important category is the firearm deportation ground in 8 U.S.C. 1227(a)(2)(C). It reaches a conviction for possessing or carrying a gun “in violation of any law,” so a misdemeanor can trigger it just as a felony can. A permanent resident with such a conviction is deportable, which means the government can seek to remove that person.

For someone who does not yet have a green card, the questions are different: whether the conviction fits one of the inadmissibility grounds in 8 U.S.C. 1182(a)(2), and whether it bars the relief the person would otherwise seek. In every case, what matters is the exact statute of conviction and the sentence imposed, not just the label.

Types of Gun Offenses and Their Impact on Green Card Eligibility

Gun offenses range from possession and carrying violations to trafficking, use of a gun in a violent crime, and possession by a person the law prohibits from having one. Under federal immigration law, they sort out this way:

The felony or misdemeanor label does not decide the outcome. A misdemeanor possession conviction is a deportation ground. A felony conviction may or may not be an aggravated felony, depending on the statute and the sentence.

Grounds of Inadmissibility Related to Firearms Violations

Inadmissibility grounds decide who can be admitted to the United States or receive a green card. The criminal grounds in 8 U.S.C. 1182(a)(2) do not include a category for firearm offenses. A gun conviction becomes an inadmissibility problem when:

• It is also a crime involving moral turpitude (8 U.S.C. 1182(a)(2)(A)(i)(I)). There are two narrow exceptions for a person who committed only one such crime: when the crime was committed before age 18 and more than 5 years before the application, counting from release from any confinement; and when the maximum possible penalty was one year or less and any sentence imposed was 6 months or less (8 U.S.C. 1182(a)(2)(A)(ii)).
• It is one of two or more convictions with combined sentences to confinement of 5 years or more (8 U.S.C. 1182(a)(2)(B)).

Even when no inadmissibility ground applies, a green card through adjustment of status is granted at the government’s discretion under 8 U.S.C. 1255(a). And a person who has already been admitted and has a gun conviction remains deportable under 8 U.S.C. 1227(a)(2)(C).

Waivers and Legal Remedies for Gun Conviction Cases

Relief depends on which ground applies and on the person’s current status.

• Waiver of criminal inadmissibility, 8 U.S.C. 1182(h). It can waive the crime-involving-moral-turpitude ground, the multiple-convictions ground, and a few others. Most applicants qualify by showing that refusal would cause extreme hardship to a spouse, parent, son, or daughter who is a U.S. citizen or permanent resident. A second route applies when the conduct occurred more than 15 years before the application and the person shows rehabilitation and that admission would not be contrary to the national welfare, safety, or security. The waiver is discretionary. It is not available to a person previously admitted as a permanent resident who has since been convicted of an aggravated felony, or who had not lawfully resided in the United States continuously for at least 7 years before removal proceedings began.
• Cancellation of removal for permanent residents, 8 U.S.C. 1229b(a). The person must have been a permanent resident for at least 5 years, have resided in the United States continuously for 7 years after being admitted in any status, and have no aggravated felony conviction.
• Cancellation of removal for others, 8 U.S.C. 1229b(b)(1). The person needs 10 years of continuous physical presence, good moral character, and proof that removal would cause exceptional and extremely unusual hardship to a U.S. citizen or permanent resident spouse, parent, or child. The person also must not have been convicted of an offense under 8 U.S.C. 1182(a)(2), 1227(a)(2), or 1227(a)(3). Because the firearm deportation ground is in 1227(a)(2), a gun conviction rules out this form of relief.

Which of these, if any, fits a particular case depends on the conviction records and the person’s immigration history, so both should be reviewed by a lawyer before anything is filed.

Steps to Take When Applying for a Green Card With a Gun Conviction

A green card application with a gun conviction needs a careful approach that addresses both the criminal and the immigration side.

1. Identify the exact conviction. Get the statute and subsection of conviction and the sentence imposed. Those facts decide whether the conviction is a deportation ground, an aggravated felony, or an inadmissibility ground.
2. Gather the court records. This includes the charging document, the plea, the judgment and sentence, and the records of any dismissed or deferred case, along with evidence of rehabilitation.
3. Get legal advice before filing. A lawyer with criminal and immigration experience should evaluate whether a waiver or other relief is available.
4. Disclose everything. A person who seeks a green card or other immigration benefit by fraud or by willfully misrepresenting a material fact is inadmissible under 8 U.S.C. 1182(a)(6)(C)(i). Leaving a conviction off an application can create a second, separate problem.
5. Prepare for the interview or hearing. The officer or judge will ask about the conviction and the circumstances behind it.

Frequently Asked Questions

Can a Gun Conviction Affect Naturalization Eligibility?

Yes. Naturalization requires good moral character during the required residence period (8 U.S.C. 1427(a)). A person convicted of an aggravated felony at any time cannot be found to have good moral character (8 U.S.C. 1101(f)(8)), and neither can a person who, during that period, was confined for a total of 180 days or more as a result of a conviction (8 U.S.C. 1101(f)(7)). Other convictions can still support a finding against good moral character. Applying to naturalize does not cure a gun conviction that makes a permanent resident deportable, and an application cannot be considered while a removal proceeding under a warrant of arrest is pending (8 U.S.C. 1429). Get advice before filing.

Does a Juvenile Gun Offense Impact Green Card Applications?

It can. Immigration consequences attach to a “conviction” as defined in 8 U.S.C. 1101(a)(48)(A), which refers to a formal judgment of guilt entered by a court. The statute does not mention juvenile court adjudications, so whether a particular juvenile case counts should be reviewed by an immigration lawyer with the court records. A minor who is tried and convicted in adult court has a conviction. For inadmissibility, there is also an exception for a person who committed only one crime involving moral turpitude, committed it before age 18, and committed it (and was released from any confinement for it) more than 5 years before applying (8 U.S.C. 1182(a)(2)(A)(ii)(I)).

How Do Gun Convictions Affect Asylum Seekers?

The bar comes from the asylum statute, not from gun laws. Asylum is not available to a person who, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States” (8 U.S.C. 1158(b)(2)(A)(ii)). A conviction for an aggravated felony, which includes firearms trafficking and some gun possession offenses, is automatically treated as a particularly serious crime (8 U.S.C. 1158(b)(2)(B)(i)). For other convictions, the statute does not list which crimes are particularly serious; the Attorney General may designate offenses by regulation.

Are Gun Convictions Treated Differently in Removal Proceedings?

Yes. A gun conviction has its own deportation ground, 8 U.S.C. 1227(a)(2)(C), separate from the grounds for crimes involving moral turpitude and aggravated felonies. A gun conviction that is also an aggravated felony is a second deportation ground (8 U.S.C. 1227(a)(2)(A)(iii)) and bars cancellation of removal for permanent residents (8 U.S.C. 1229b(a)(3)). Most gun convictions go through the ordinary removal process. For a person convicted of an aggravated felony who is not a permanent resident, 8 U.S.C. 1228(b) allows the government to issue a removal order through a separate administrative procedure instead of a full removal hearing.

Can Legal Gun Ownership After Conviction Improve Green Card Chances?

Restoring gun rights does not help in the way the question suggests. The deportation ground in 8 U.S.C. 1227(a)(2)(C) turns on the conviction, and nothing in that section, in the 1182(h) waiver, or in the cancellation rules in 1229b treats restoration of firearm rights as removing the conviction. Evidence of rehabilitation does matter in some places, such as the 15-year route of the 1182(h) waiver (8 U.S.C. 1182(h)(1)(A)(iii)). Owning a gun can also create new problems. Federal law bars noncitizens who are unlawfully in the United States, and with limited exceptions those admitted on nonimmigrant visas, from possessing firearms (18 U.S.C. 922(g)(5)), and a new gun conviction would be a new deportation ground. Talk to a lawyer before buying or keeping a gun while any immigration matter is pending.