Nonimmigrant Aliens and Firearms Disabilities Under the Gun Control Act ( 2011 )

NONIMMIGRANT ALIENS AND FIREARMS DISABILITIES UNDER THE
GUN CONTROL ACT
The prohibition in 18 U.S.C. § 922(g)(5)(B) applies only to nonimmigrant aliens who must have
visas to be admitted to the United States, not to all aliens with nonimmigrant status. The text of the
statute forecloses the interpretation advanced by the Bureau of Alcohol, Tobacco, Firearms and
Explosives in an interim final rule applying section 922(g)(5)(B) to all nonimmigrant aliens.
October 28, 2011
MEMORANDUM OPINION FOR THE CHIEF COUNSEL,
BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES
A provision of the federal Gun Control Act prohibits any “alien” who has “been admitted
to the United States under a nonimmigrant visa” from shipping, transporting, possessing, or
receiving “any firearm or ammunition” that has a connection to interstate commerce. 18 U.S.C.
§ 922(g)(5)(B) (2006). In 2002, the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) issued an interim final rule interpreting this prohibition to apply to any alien who has
the status of “nonimmigrant alien,” regardless of whether the alien required a visa in order to be
admitted to the United States. See 27 C.F.R. § 478.32(a)(5)(ii) (2011). In March 2011, in
response to a request for informal advice regarding ATF’s interpretation, we concluded that the
text of the statute forecloses that interpretation. We explained that the text is clear: the provision
applies only to nonimmigrant aliens who must have visas to be admitted, not to all aliens with
nonimmigrant status. In May 2011, you requested a formal opinion from the Office on this
matter. 1 This memorandum memorializes and elaborates upon the informal advice we provided
in March. In the course of formalizing our advice, we received views from the Department of
Homeland Security (“DHS”), 2 which also concluded that the interpretation reflected in ATF’s
interim final rule conflicts with the plain text of the statute.
I.
Congress enacted the Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213
(codified at 18 U.S.C. §§ 921–931), to “establish[] a detailed federal scheme” to govern
“the distribution of firearms,” Printz v. United States, 521 U.S. 898, 902 (1997). Congress
also prescribed criminal and civil penalties for knowing violations of the statute’s provisions.
See 18 U.S.C. § 924(a)(2) (2006) (“Whoever knowingly violates . . . (d) [or] (g) . . . of section
1
See Memorandum for the Office of Legal Counsel from Stephen R. Rubenstein, Chief Counsel, Bureau
of Alcohol, Tobacco, Firearms and Explosives (May 11, 2011) (“ATF Memorandum”).
2
See Letter for Cristina M. Rodríguez, Deputy Assistant Attorney General, Office of Legal Counsel, from
Seth Grossman, Chief of Staff, Office of the General Counsel, Department of Homeland Security (July 20, 2011)
(“DHS Letter”). We also received views from the Federal Bureau of Investigations (“FBI”). See E-mail for Cristina
M. Rodríguez, Deputy Assistant Attorney General, Office of Legal Counsel, from Scarlett Everly, National Instant
Criminal Background Check System Bureau of Investigation, Federal Bureau of Investigation (June 13, 2011)
(noting that when a Federal Firearms Licensee provides the FBI with information that a prospective purchaser has
indicated he or she is a non-U.S. citizen, the FBI searches DHS records to determine if the potential purchaser is an
unlawful or nonimmigrant alien and processes firearm background checks in line with ATF’s interpretation of 18
U.S.C. § 922(g)(5)(B)).
Opinions of the Office of Legal Counsel in Volume 35
922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.”).
The concerns animating the legislation included the need to address “the widespread traffic in
firearms” and the “general availability” of firearms to persons “whose possession thereof was
contrary to the public interest.” United States v. One Assortment of 89 Firearms, 465 U.S. 354,
364 (1984) (internal quotation marks omitted); see also Barrett v. United States, 423 U.S. 212,
220 (1976) (“The history of the 1968 Act reflects a . . . concern with keeping firearms out of the
hands of categories of potentially irresponsible persons, including convicted felons.”).
As part of the Act’s scheme, Congress laid out various so-called “prohibitors” to identify
the categories of people barred from possessing, shipping, transporting, or receiving firearms.
See 18 U.S.C. § 922(h) (Supp. IV 1968). These prohibitors are now codified in 18 U.S.C.
§ 922(g) (2006). In 1998, Congress added the prohibitor here at issue to the statute: section
922(g)(5)(B) bars “aliens” 3 who have “been admitted to the United States under a nonimmigrant
visa” from possessing, shipping, transporting, or receiving firearms. Omnibus Consolidated and
Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105-277, 112 Stat. 2681
(codified at 18 U.S.C. § 922(g)(5)(B)). 4
In 2002, ATF adopted an interim final rule implementing section 922(g)(5)(B).
See Temporary Rule (Treasury decision), Implementation of Public Law 105-277, Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 1999, Relating to Firearms
Disabilities for Nonimmigrant Aliens, and Requirement for Import Permit for Nonimmigrant
Aliens Bringing Firearms and Ammunition Into the United States (2001R-332P), 67 Fed. Reg.
5422 (Feb. 5, 2002). 5 ATF interpreted the prohibitor to include all aliens with the status of
nonimmigrant alien, not just those nonimmigrants who required a visa to be admitted to the
United States. In explaining this interpretation, ATF acknowledged that section 922(g)(5)(B)
applied by its terms to “aliens admitted to the United States under a nonimmigrant visa,” but also
determined that such a visa “simply facilitates travel and expedites inspection and admission to
the United States,” and “does not itself provide nonimmigrant status.” Id. at 5422. Based on this
observation, as well as its view that drawing distinctions among different types of nonimmigrant
aliens was neither rational nor supported by the legislative history, ATF concluded that Congress
intended the prohibitor to cover all persons with nonimmigrant alien status, see id., and issued its
interim final rule. See 27 C.F.R. § 478.32(a)(5)(ii); see id. § 478.11 (defining “nonimmigrant
alien”). ATF has since understood section 922(g)(5)(B) to apply to all aliens with nonimmigrant
status, including nonimmigrant aliens admitted to the United States without a visa, pursuant
3
The original Gun Control Act did not contain a prohibitor applicable to aliens. Congress first adopted
that prohibition in Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. app. § 1202(a)
(Supp. IV 1968), barring possession by “‘alien[s]’” who are “‘illegally or unlawfully in the United States,’” United
States v. Bass, 404 U.S. 336, 337 n.1 (1971). In 1986, Congress repealed Title VII and added a firearms disability
for aliens who are “illegally or unlawfully in the United States” to 18 U.S.C. § 922. See Firearm Owners’ Protection
Act, Pub. L. No. 99-308, 100 Stat. 449, 457 (1986).
4
Section 922(y)(2) lists various exceptions to the prohibition in section 922(g)(5)(B), and section
922(y)(3) sets out a waiver procedure for aliens subject to the requirements of section 922(g)(5).
5
ATF issued the interim rule before Congress transferred ATF from the Department of the Treasury to
the Department of Justice through the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. See
6 U.S.C. § 531(c) (2006); 28 U.S.C. § 599A(c)(1) (2006). Congress originally delegated rulemaking authority to
implement the Gun Control Act to the Secretary of the Treasury but, due to the transfer, such rulemaking authority
now resides in the Attorney General. See 18 U.S.C. § 926(a) (2006).
2
Nonimmigrant Aliens and Firearms Disabilities Under the Gun Control Act
either to the Visa Waiver Program, see 8 U.S.C. § 1187 (2006), or to regulations otherwise
exempting them from visa requirements. 6
II.
You have asked whether ATF’s interim rule permissibly construes section 922(g)(5)(B).
Our analysis of the provision “begin[s], as always, with the text of the statute.” Hawaii v. Office
of Hawaiian Affairs, 556 U.S. 163, 173 (2009) (internal quotation marks omitted). In our view,
the text of the statute is clear and forecloses ATF’s interpretation. Section 922(g)(5)(B) makes it
unlawful for aliens who have 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, transport, possess, or receive any firearms or ammunition. 18 U.S.C.
§ 922(g)(5)(B). Section 101(a)(26) of the Immigration and Nationality Act (“INA”), in turn,
defines a “nonimmigrant visa” as “a visa properly issued to an alien as an eligible nonimmigrant
by a competent officer as provided in this chapter.” 8 U.S.C. § 1101(a)(26) (2006). The text
of section 922(g)(5)(B), read in accord with section 101(a)(26) of the INA, therefore makes it a
crime for an alien who has been “issued” a “visa . . . as an eligible nonimmigrant by a competent
officer” to ship, transport, possess, or receive any firearm or ammunition. 7
Nothing in this statutory text indicates that the prohibition applies to persons simply
by virtue of their status as nonimmigrants. The statute instead requires that the covered
nonimmigrant possess a visa. ATF’s interim rule thus reads a key limiting phrase—“admitted
. . . under a nonimmigrant visa”—out of the statute, in contravention of bedrock principles of
statutory interpretation. See, e.g., Fid. Fed. Sav. & Loan Ass’n v. De La Cuesta, 458 U.S. 141,
163 (1982) (declining to construe a statute “so as to render [certain] provisions nugatory, thereby
offending the well-settled rule that all parts of a statute, if possible, are to be given effect”)
(internal quotation marks omitted); see also DHS Letter at 5-8 (noting that ATF’s interpretation
finds support in neither ordinary linguistic practices nor case law).
ATF suggests that the text of section 922(g)(5)(B) is “inaccurate and ambiguous”
because nonimmigrant aliens are not actually “‘admitted under’” a visa. ATF Memorandum
at 2. Instead, a visa merely “expedites admission to the United States by showing that the State
Department found the person to be admissible.” Id. According to ATF, it then “is up to the
6
By statute, the Attorney General and the Secretary of State are authorized to establish a Visa Waiver
Program under which a nonimmigrant alien may seek a waiver of the visa requirement if, among other things, he or
she seeks entry “for a period not exceeding 90 days”; is “a national of, and presents a passport issued by, a country
which . . . extends . . . for immigration admissions, reciprocal privileges to citizens and nationals of the United
States”; and “has been determined not to represent a threat to the welfare, health, safety, or security of the United
States.” 8 U.S.C. § 1187(a)(1), (2), (6) (2006). In addition, the visa requirement has been waived by regulation for
certain categories of foreign nationals, including nationals from particular countries, such as Canada and Mexico,
seeking admission to the United States for particular purposes. See 22 C.F.R. § 41.2(a), (g) (2011).
7
Section 922(d)(5) similarly makes it unlawful to sell or dispose of a firearm or ammunition to “an alien”
who “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))).” 18 U.S.C. § 922(d)(5) (2006). Because ATF has
requested our view on the meaning of section 922(g)(5)(B) only, our opinion is limited to that subsection, but our
analysis would likely apply to section 922(d)(5), provided no relevant differences between that provision and section
922(g)(5)(B) exist.
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immigration officer at the port of entry to determine if the individual is in fact admissible and,
if so, under what terms and conditions and in what category.” Id.
Though DHS indicates that ATF accurately describes the admissions process, see DHS
Letter at 7, that description does not support ATF’s reading of section 922(g)(5)(B). As a matter
of ordinary usage, the process to which ATF refers could be described as admission “under a
nonimmigrant visa” because the nonimmigrant must present the visa when seeking admission.
As DHS emphasizes, see DHS Letter at 7-8, courts have employed language similar to that
contained in the statutory provision when describing different categories of aliens, underscoring
that “admitted . . . under a nonimmigrant visa” can be used in a non-technical sense to refer to
the particular subclass of nonimmigrant aliens admitted with a visa. See, e.g., Phal v. Mukasey,
524 F.3d 85, 87 (1st Cir. 2008) (noting an alien “entered the United States on a nonimmigrant
visa”); Choe v. INS, 11 F.3d 925, 943 (9th Cir. 1993) (“Before 1960, the Attorney General had
three options when faced with an adjustment application from an alien who entered under a
nonimmigrant visa . . . .”). Moreover, “[i]mmigration law draws a distinction between aliens
in possession of a nonimmigrant visa and those who have been admitted in a nonimmigrant
classification.” DHS Letter at 5. The statutory reference to nonimmigrants “admitted . . . under
a nonimmigrant visa” therefore has a clear meaning here: it indicates that Congress intended the
firearms disabilities in section 922(g)(5)(B) to apply only to a subset of nonimmigrants—namely
those who possess a “nonimmigrant visa”—whatever that visa’s function. 8
ATF also justifies its interpretation of the statutory text on the ground that applying
the prohibitor to only a particular subset of nonimmigrants would produce “irrational” results,
because “[t]here is no logical reason nonimmigrants with nonimmigrant visas should have a
firearms disability, if nonimmigrants without visas do not have the disability.” ATF
Memorandum at 4. Although an established canon of statutory construction might permit
departure from the literal meaning of statutory text where such a reading would produce
“positively absurd” results, United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994),
the literal meaning of section 922(g)(5)(B) is far from absurd. Indeed, the Supreme Court
recently has emphasized that “it is not this Court’s task to decide whether the statutory scheme
established by Congress is unusual or even bizarre.” PLIVA, Inc. v. Mensing, 131 S. Ct. 2567,
2582 (2011) (internal quotation marks omitted).
Although the text of the statute does not include an express rationale for the distinction
drawn between nonimmigrants with visas and those without, it is not difficult to discern a
rational basis for the distinction. DHS has told us, for example, that applying the prohibitor to
nonimmigrant aliens in a limited fashion, “while not ideal . . . would not be irrational,” as it is
possible that Congress considered those aliens eligible for admission to the United States without
a nonimmigrant visa to be a “lesser security risk” than aliens admitted with visas. DHS Letter at
8-9. After all, Congress has tied the decision whether to waive visa requirements to judgments
8
DHS also observes that Congress would have been fully aware of the existence of categories of
nonimmigrants who did not require visas to be admitted to the United States when it enacted section 922(g)(5)(B).
The Visa Waiver Program had been in effect for twelve years at the time Congress debated section 922(g)(5)(B),
and Canadian and Mexican nationals in possession of border crossing cards had long been permitted to enter the
United States without a nonimmigrant visa. See DHS Letter at 7; see also Miles v. Apex Marine Corp., 498 U.S.
19, 32 (1990) (“We assume that Congress is aware of existing law when it passes legislation.”).
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Nonimmigrant Aliens and Firearms Disabilities Under the Gun Control Act
about a waiver’s effects on public safety, and Congress here could have concluded that
nonimmigrant aliens who do not require visas do not present the public safety risks that warrant
prohibiting their acquisition of firearms. See id. at 8. 9
Other factors may also explain why Congress decided to treat nonimmigrant aliens
eligible for visa waivers differently from nonimmigrant aliens admitted under visas. For
example, nonimmigrants admitted under the Visa Waiver Program may well spend less time in
the country than other nonimmigrants, see 8 U.S.C. § 1187(a)(1) (2006) (imposing 90-day limit
on aliens admitted under Visa Waiver Program), perhaps making them less likely to purchase
firearms. Congress also could have thought that imposing criminal firearms prohibitions on
nonimmigrant aliens admitted under the program would frustrate the objectives of the program,
which include reducing barriers to and burdens upon travel. See U.S. Department of State,
Visa Waiver Program (VWP), http://travel.state.gov/visa/temp/without/without_1990.html
(last visited Oct. 21, 2011) (“The program was established to eliminate unnecessary barriers to
travel, stimulating the tourism industry, and permitting the Department of State to focus consular
resources in other areas.”).
Congress (or some members thereof) ultimately could have had all, some, or none of
these considerations in mind. Whatever Congress’s motivation, these rationales demonstrate
that it would have been rational for Congress to draw a statutory line between nonimmigrants
with visas and those without, such that the plain meaning of the text is not absurd. ATF may
be correct that the firearms disabilities in section 922(g)(5)(B) should be applied to all
nonimmigrant aliens “as a matter of sound public policy” or administrative convenience.
ATF Memorandum at 4. But any debate over whether the current statute is deficient as a policy
matter ultimately “belongs in the halls of Congress.” Powerex Corp. v. Reliant Energy Servs.,
551 U.S. 224, 237 (2007).
ATF next turns to legislative history to support its position. ATF first points to two
floor statements made by members of Congress during the debate over section 922(g)(5)(B):
a statement by Senator Richard Durbin that a restriction on gun possession should apply to
persons who “‘come into this country as our guest, not as a citizen of the United States,’”
and a statement by Senator Larry Craig supporting restrictions on gun possession by persons
“‘who are guests in our country, legally or illegally.’” ATF Memorandum at 2 (quoting 144
Cong. Rec. 16,493-94 (1998)). From these statements, ATF concludes that Congress intended
the gun control prohibition to apply to all nonimmigrant aliens, regardless of visa status.
Because the text of the statute is clear, any resort to legislative history in this context is
unnecessary. See, e.g., Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992) (“When
9
DHS cites 8 U.S.C. § 1187(c)(2)(C), which provides that a country will not be eligible for the Visa
Waiver Program unless the Secretary of Homeland Security “evaluates the effect that the country’s designation
would have on the law enforcement and security interests of the United States.” See also id. § 1187(c)(2)(F) (Supp.
IV 2010) (requiring participating countries to share information regarding safety risks); U.S. Department of State,
Visa Waiver Program (VWP), http://travel.state.gov/visa/temp/without/without_1990.html (last visited Oct. 21,
2011) (“To be admitted to the Visa Waiver Program, a country must meet various security and other requirements,
such as enhanced law enforcement and security-related data sharing with the United States and timely reporting of
both blank and issued lost and stolen passports. VWP members are also required to maintain high counterterrorism,
law enforcement, border control, and document security standards.”).
5
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the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is
complete.” (internal quotation marks omitted)); Ratzlaf v. United States, 510 U.S. 135, 147-48
(1994) (“[W]e do not resort to legislative history to cloud a statutory text that is clear.”). What is
more, floor statements are generally of limited interpretive assistance as they “reflect at best the
understanding of individual Congressmen.” Zuber v. Allen, 396 U.S. 168, 186 (1969). Indeed,
we think it unlikely that even unambiguous floor statements by a few members of Congress
could ever overcome the plain meaning of a statute. See Barnhart v. Sigmon Coal Co., Inc.,
534 U.S. 438, 457 (2002) (“Floor statements from two Senators cannot amend the clear and
unambiguous language of a statute.”).
In any event, neither of the floor statements speaks directly to the interpretive issue
addressed here. Neither uses the term “nonimmigrants.” Each statement refers instead to
“guests” or a person who enters the country “not as a citizen” of the United States. The plain
meaning of these references, particularly the reference to non-citizens, encompasses all
immigrants, including lawful permanent residents—immigrants who neither ATF nor the
legislative record suggests are covered by section 922(g)(5)(B). Thus, two Senators’ use of the
references “guest[]” and person who enters “not as a citizen” during a floor debate provides little,
if any, insight into the meaning of the statutory phrase “nonimmigrants . . . admitted under a
visa.” Cf. Aaron v. SEC, 446 U.S. 680, 697 (1980) (“it would take a very clear expression in the
legislative history of congressional intent to the contrary to justify the conclusion that the statute
does not mean what it so plainly seems to say”). 10
ATF also highlights a floor statement from the debate over a later-enacted statutory
provision—an explosives prohibition contained in the Homeland Security Act of 2002. See ATF
Memorandum at 4. During that legislative debate, a section-by-section analysis was introduced
into the record explaining that the prohibition would apply to “aliens other than lawful
permanent resident aliens” and that the provision “brings the explosives law in line with most
categories of prohibited people in the Gun Control Act.” 148 Cong. Rec. 22,985 (2002) (noting
also that “[t]he language relating to non-immigrant aliens differs slightly from that in the Gun
Control Act, as technical changes have been made to improve the clarity of the provisions”).
ATF’s argument appears to be that (i) because a sectional analysis accompanying the explosives
statute stated that the statute would bring the law into line with the Gun Control Act; (ii) because
the explosives provision clearly applied to all aliens other than lawful permanent residents,
including all nonimmigrant aliens; and (iii) because the only difference in the language of the
definitions of the two statutes was “technical,” Congress must have intended the Gun Control
Act to apply to all nonimmigrant aliens. See ATF Memorandum at 4.
This argument rests not on the legislative history of the Gun Control Act, but on the
history of a subsequently enacted statute. Like broad statements from individual members of
10
Although it is unnecessary to our statutory analysis, we note that elements of the legislative history
reinforce the plain meaning of the text. The legislative record suggests that the prohibition in section 922(g)(5)(B)
was added in response to a shooting by “a resident of the Nation of Lebanon” who had come “to the United States
on a nonimmigrant visa, such as a tourist visa.” 144 Cong. Rec. 16,493 (1998). Furthermore, the principal sponsor
of the bill, Senator Durbin, used the term “nonimmigrant visa” six times in the course of a short floor statement
discussing the need for the prohibition. See id. This legislative history suggests that Congress drafted
section 922(g)(5)(B) to apply to nonimmigrants admitted under a visa for the simple reason that it was that category
of nonimmigrant aliens Congress had in mind in enacting the bill.
6
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Congress, such evidence provides only limited support for a statutory reading that is inconsistent
with the text. The history of later-enacted statutes generally does not provide reliable evidence
of the intent of the Congress that enacted an earlier provision. See Mackey v. Lanier Collection
Agency & Serv., Inc., 486 U.S. 825, 840 (1988) (“The views of a subsequent Congress form a
hazardous basis for inferring the intent of an earlier one.”) (internal quotation marks omitted).
For these reasons, we do not believe the legislative history of the explosives statute sheds light
on the meaning of section 922(g)(5)(B).
III.
You also have asked us what actions ATF would be legally required to take with respect
to past or pending criminal cases in the event that section 922(g)(5)(B) does not apply to all
nonimmigrant aliens. See ATF Memorandum at 5. The necessary implication of our conclusion
here is that section 922(g)(5)(B) does not authorize future or pending investigations and
prosecutions predicated on the view that the statute applies to all nonimmigrant aliens, regardless
of visa status. Although we are not aware of any legal obligations ATF or the Department might
have to seek the vacatur of any past criminal convictions, we note that the Criminal Division
possesses substantial expertise on the relevant legal rules and Department practices in such
circumstances.
/s/
VIRGINIA A. SEITZ
Assistant Attorney General
7