Monday, January 16, 2012

Non-immigrant Alien Resident Purchase and Posession of Firearms - Hunting License Exception

Wikipedia gives a nice summary of the GCA:
The Gun Control Act of 1968 (GCA or GCA68), Pub.L. 90-618, 82 Stat. 1213, enacted October 22, 1968 by president Lyndon Johnson, is a federal law in the United States that broadly regulates the firearms industry and firearms owners. It primarily focuses on regulating interstate commerce in firearms by generally prohibiting interstate firearms transfers except among licensed manufacturers, dealers and importers.
The GCA is codified as Chapter 44 of Title 18 of the United States Code, and is Title I of the U.S. federal firearms laws. The National Firearms Act of 1934 (NFA) is Title II. Both GCA and NFA are enforced by the ATF.
Aliens are addressed in § 922. "Unlawful acts".  Specifically:
(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person— 
... 
(5) who, being an alien—

(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
and
(g) It shall be unlawful for any person—
(5) who, being an alien—

...
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. 
However, there are exceptions:
(y) Provisions Relating to Aliens Admitted Under Nonimmigrant Visas.—
(1) Definitions.— In this subsection—
(A) the term “alien” has the same meaning as in section 101(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(3)); and
(B) the term “nonimmigrant visa” has the same meaning as in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)).
(2) Exceptions.— Subsections (d)(5)(B), (g)(5)(B), and (s)(3)(B)(v)(II) do not apply to any alien who has been lawfully admitted to the United States under a nonimmigrant visa, if that alien is—
(A) admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States;
ATF regulations also recognize the hunting permit exception:
§ 478.32   Prohibited shipment, transportation, possession, or receipt of firearms and ammunition by certain persons. (a) No person may ship or transport any firearm or ammunition in interstate or foreign commerce, or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce, or possess any firearm or ammunition in or affecting commerce, who:
...
(5) Being an alien—
(i) Is illegally or unlawfully in the United States; or
(ii) Except as provided in paragraph (f) of this section, is a nonimmigrant alien: Provided, That the provisions of this paragraph (a)(5)(ii) do not apply to any nonimmigrant alien if that alien is-
(A) Admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States;
and

§ 478.99   Certain prohibited sales or deliveries.
...
(c) Sales or deliveries to prohibited categories of persons. A licensed manufacturer, licensed importer, licensed dealer, or licensed collector shall not sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person:
...
(5) Is an alien illegally or unlawfully in the United States or, except as provided in §478.32(f), is a nonimmigrant alien: Provided, That the provisions of this paragraph (c)(5) do not apply to any nonimmigrant alien if that alien is—
(i) Admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States;

and

§ 478.124   Firearms transaction record.
(3) After the transferee has executed the Form 4473, the licensee:
(i) Shall verify the identity of the transferee by examining the identification document (as defined in §478.11) presented, and shall note on the Form 4473 the type of identification used;
(ii) Shall, in the case of a transferee who is an alien legally in the United States, cause the transferee to present documentation establishing that the transferee is a resident of the State (as defined in §478.11) in which the licensee's business premises is located, and shall note on the form the documentation used. Examples of acceptable documentation include utility bills or a lease agreement which show that the transferee has resided in the State continuously for at least 90 days prior to the transfer of the firearm; and
(iii) Must, in the case of a transferee who is a nonimmigrant alien who states that he or she falls within an exception to, or has a waiver from, the nonimmigrant alien prohibition, have the transferee present applicable documentation establishing the exception or waiver, note on the Form 4473 the type of documentation provided, and attach a copy of the documentation to the Form 4473.

Also, in the FEDERAL FIREARMS REGULATIONS REFERENCE GUIDE  2005 published by the ATF:
p.197
R. NONIMMIGRANT ALIENS
(R1) May nonimmigrant aliens legally in the United States purchase or possess firearms and ammunition while in the United States?
Nonimmigrant aliens generally are prohibited from possessing or receiving (purchasing) firearms and ammunition in the United States. There are exceptions to this general prohibition. The exceptions are as follows:
1. nonimmigrant aliens who possess a valid (unexpired) hunting license or permit lawfully issued by a State in the United States;
...
Significantly, even if a nonimmigrant alien falls within one of these exceptions, the nonimmigrant alien CANNOT purchase a firearm from a Federal firearms licensee (FFL) unless he or she (1) has an alien number or admission number from the Department of Homeland Security (formerly the Immigration and Naturalization Service) AND (2) can provide the FFL with documentation showing that he or she has resided in a State within the United States for 90 consecutive days immediately prior to the firearms transaction. [18 U.S.C. 922(g)(5)(b) and 922(y), 27 CFR 478.124, ATF Rul. 2004-1]

(R2) Typically, who are "nonimmigrant aliens?"
In large part, nonimmigrant aliensare persons traveling temporarily in the United States for business or pleasure, persons studying in the United States who maintain a foreign residence abroad, and certain foreign workers. Permanent resident aliens are NOT nonimmigrant aliens. Permanent resident aliens often are referred to as people with "green cards."
...
(R8) I am a nonimmigrant alien who has resided in Idaho for 1 year. I have a valid Montana hunting license. Can I use the Montana license as evidence that I fall within an exception to the nonimmigrant alien prohibition when I go to buy a gun from a dealer in Idaho?
Yes. A valid hunting license or permit from any State within the United States satisfies the hunting license exception to the nonimmigrant alien prohibition. The license does not have to be from the State where the nonimmigrant alien is purchasing the firearm. Please note, the transaction must comply with State and local laws.
(R9) I am a nonimmigrant alien who is on a month-long vacation in the United States. I have a hunting license and an admission number. Can I legally buy a firearm from a Federal firearms licensee (FFL) in the United States and take possession of it in the United States?
No. You cannot legally buy a firearm from an FFL and take possession of it in the U.S. because you have not resided in a State within the United States for 90 days.
I hope this serves as a good starting point for an attorney advising a non-immigrant alien resident.  As to the procedure to obtain a hunting license, of course this will vary on a state-by-state basis.  I would caution the alien to seek a license that is a "lifetime" license or infinitely renewable, because if the license expires, so does the exception.  I did not see any rules limiting the immigrant to "hunting"-type firearms only (i.e. rifles and shotguns), and as a practical matter, handguns are commonly used for hunting, although not as frequently as other arms.  And even when not specifically intended for game, handguns are often considered part of a hunter's "gear" to provide a quick defensive response to dangerous predators who pick up the scent of a hunter's kill--for example a hunter might carry a pistol to respond to (or scare away) wolves who become too curious about a deer he shot with a rifle.  The regulations do not suggest an actual intent or attempt to ever go hunting, but it might be advisable to do so and document the effort.  Also, I would do more research and possibly seek an ATF letter before a non-FFL would transfer to a known non-immigrant alien, even one possessing a valid hunting license.

What do I think of these laws?  First, let me say I have mixed thoughts on non-immigrant visas.  Take for example the H1B "special skills" work visa.  Nothing wrong with the US "draining brains" from other countries if we truly don't have the skills here.  As long as the situation is well policed, legal immigration and non-immigrant visas are, like everything in life, healthy in moderation.  On the other hand, I believe several if not all of the 9/11 perpetrators were here on non-immigrant visas.

But putting immigration policy aside, and the anomaly of terrorists, I have known many H1B and T1 (student) immigrants and they are all good people.  If they want to legally own firearms for sporting and defensive purposes while they are here, why not?  Let them take the things they learn here back to their homelands and convey to their countrymen how much safer they were here in the US, and how less oppressive the US government is to its people, because the US trusts its residents with guns.

In that vein, I don't see much need for the hunting license exception, but would rather see an exception for any legal non-immigrant alien.

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