(CN) - Dealing guns without a license is not a crime involving moral turpitude, the 3rd Circuit ruled, leaving the door open for a convicted immigrant to return to the United States in 10 years.
Rene Mayorga fled a civil war in El Salvador and entered the United States as a teenager in 1988.
He filed for asylum in 1995, is married to a U.S. citizen and has five children under the age of 15.
In 2010, Mayorga pleaded guilty to firearms dealing without a license, and served seven months of a 46-month prison sentence.
The day he was released from prison, the Department of Homeland Security served Mayorga with notice of his pending removal for his firearms conviction, which the department classified as a crime involving moral turpitude (CIMT).
Homeland Security also decided that Mayorga should be detained during his removal proceedings, and he remains in a detention center.
Mayorga concedes that he is subject to removal, which bars him from returning to the U.S. for 10 years, but disputes that his conviction involved a crime of moral turpitude. That finding would forbid him from ever re-entering the country.
Satisfying the jurisdiction of the Philadelphia-based federal appeals court over Mayorga's claim, "the additional harm caused by a lifetime ban, as opposed to a ten-year bar, is certainly 'concrete and continuing,'" Judge Dolores Sloviter wrote for a three-judge panel Friday.
The immigration judge declared Mayorga's offense a CIMT based on the 46-month sentence imposed for the crime.
But, "on its face, the crime Mayorga was convicted of is a regulatory/licensing offense," Sloviter wrote.
The immigration judge deemed Mayorga's crime malum in se
, or inherently wrongful, but Sloviter said "such a conclusion is highly dubious, and inconsistent with precedent."
Precedent supports a finding that the violation of a regulatory law is not a crime of moral turpitude, according to the opinion.
"We recognize that the intentional violation of even regulatory offenses might involve significant moral content, but our application of the categorical approach, forecloses this line of reasoning in this case," Sloviter said. "Mayorga's crime of conviction is obviously one that could be violated unintentionally and in a non-turpitudinous manner. For example, a dealer who inadvertently let his or her license lapse would be in violation of 18 U.S.C. § 922(a)(1)(A). Given these facts, we cannot sustain the IJ's determination that Mayorga's crime of conviction was categorically a CIMT."