Fact Check: ATF Background Check Was NOT Updated To Authorize 'Illegal Immigrants' To Purchase Firearms

Fact Check

  • by: Uliana Malashenko
Fact Check: ATF Background Check Was NOT Updated To Authorize 'Illegal Immigrants' To Purchase Firearms Didn't Happen

Was the mechanism of the background check conducted by the Bureau of Alcohol, Tobacco, Firearms and Explosives to screen potential gun owners changed in a way that now allows undocumented residents to buy and possess guns in the United States? No, that's not true: On December 27, 2023, the bureau, abbreviated as the ATF, categorically denied such a change. The claim contained several other false statements previously debunked by Lead Stories.

The story originated from a video (archived here) published on Instagram on December 22, 2023. It showed a woman saying:

So my husband owns a gun shop, and he just called me to tell me that the ATF has made updates to their background check policy and -- effective today -- they give an exemption to illegal immigrants to be able to purchase firearms. Now, this strangely coincides with California, New York and Chicago, making it legal for illegals to be police officers. Tell me our government isn't about to pull some shenanigans without telling me our government's about to pull some shenanigans.

This is what the post looked like on Instagram at the time of writing:

Screen Shot 2023-12-27 at 6.12.20 PM.png

(Source: Instagram screenshot taken on Dec 27 23:12:20 2023 UTC)

However, the ATF press office told Lead Stories via email on December 27, 2023:

The claims in the Instagram posting are false. In the Gun Control Act, Congress established statutory prohibitions on firearm possession by certain persons, including certain categories of non-citizens, and the amendments in the Bipartisan Safer Communities Act to the GCA did not change those categories.

Answering a follow-up question via email on December 28, 2023, it added that, contrary to the claim, the Bureau doesn't "update" that on its own, either:

...ATF cannot change statutory prohibition categories.

The Gun Control Act of 1968 (archived here) is a federal law regulating the firearms industry. It specifically excludes (archived here) those who are "an illegal alien" and those who "renounced his or her United States citizenship" from the categories of people allowed to obtain guns in the U.S., among others.

[By 2021, several agencies, including the Department of Justice (archived here), had stopped using the terms "alien" and "illegal" in internal and external communications, respectively substituting them with "noncitizens" and, for example, "undocumented." Old language remains in use if it's cited from previous laws, court decisions and other similar documents.]

The second piece of legislation cited by the ATF, the Bipartisan Safer Communities Act of 2022, does not remove the previously known restrictions. According to its summary (archived here), the changes pursue the opposite:

...to expand background check requirements for persons who are under 21 years of age, to establish new criminal offenses for straw purchasing of firearms and trafficking in firearms, and to extend federal firearms-related restrictions to individuals convicted of domestic violence misdemeanors against dating partners.

As of this writing, the USCIS website (archived here) additionally stated:

It is a federal crime for a noncitizen who is 'illegally or unlawfully in the United States,' among others, 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. See 18 U.S. 922(g)(5)(A).

As Lead Stories previously wrote, the USCIS doesn't use the words "legal" and "lawful" interchangeably in all contexts. In some cases, "legal" is a reference to the grounds of the present stay in the country while "lawful" is to determine eligibility for other things. In other cases, "lawful" means uninterrupted continuation of legal status.

Thus, eligibility for gun ownership depends on the specific rules and regulations defining a specific status. For example, DACA recipients are not allowed to possess guns. In contrast, the FBI, which is the agency that operates the database (archived here) used for the ATF background checks, issued an August 2023 guidance (archived here) saying that refugees (archived here) -- those who apply for asylum from abroad and, when it's granted, enter the country on a status different from lawful permanent resident -- should be treated as immigrant noncitizens for this particular purpose.

As of this writing, the ATF website (archived here) also said that noncitizens as a broad group are not automatically banned from having a gun. However, gun ownership is only a possibility if they meet certain eligibility criteria:

An alien legally in the U.S. is not prohibited from purchasing firearms unless the alien is admitted into the U.S. under a nonimmigrant visa and does not meet one of the exceptions as provided in 18 U.S.C. 922(y)(2), such as possession of a valid hunting license or permit.

Lead Stories already debunked other claims reused in the post on Instagram about the laws expanding law enforcement recruitment in California and Illinois.

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  Uliana Malashenko

Uliana Malashenko is a New York-based freelance writer and fact checker.

Read more about or contact Uliana Malashenko

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