United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 16, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-20109
UNITED STATES OF AMERICA
Plaintiff - Appellant
v.
GIOVANNI FLORES
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas, Houston
Before KING, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
KING, Chief Judge:
The government appeals from the district court’s pretrial
dismissal of an indictment charging Defendant-Appellee Giovanni
Flores with violating 18 U.S.C. § 922(g)(5)(A) by being an alien,
illegally or unlawfully in the United States, in possession of a
firearm. Because the district court erred in concluding that
Flores was not illegally or unlawfully in the United States, we
REVERSE and REMAND.
I. BACKGROUND
The facts essential to this appeal are undisputed. Giovanni
Flores is a native of El Salvador who illegally entered the
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United States in January 2001. He was not inspected by
immigration officials when he entered, and he secured no
authorization of any kind to enter the country. Apparently, his
illegal entry and unlawful presence in the United States went
undetected. In March 2001, the Attorney General designated El
Salvador as a country whose citizens may be eligible for
“temporary protected status” (“TPS”) under 8 U.S.C. § 1254a.1 In
May 2001, Flores surfaced and applied for TPS.
An alien whose application for TPS is granted is entitled to
certain benefits. See 8 U.S.C. § 1254a (2000). Most
importantly, the government “shall not remove the [temporarily
protected] alien from the United States during the period in
which such status is in effect,” and it “shall authorize the
alien to engage in employment in the United States and provide
the alien with an ‘employment authorized’ endorsement or other
appropriate work permit.”2 8 U.S.C. § 1254a(a)(1).
1
The Attorney General may so designate a country if it
suffers from armed conflict, a natural disaster, or another
extraordinary, temporary condition that threatens its citizens
and therefore makes removal (i.e., deportation) back to the
country undesirable for humanitarian reasons. See 8 U.S.C.
§ 1254a(b) (2000). The Attorney General made Salvadoran
nationals eligible for TPS in 2001 following a series of
earthquakes in that country.
2
In addition, an alien who receives TPS “shall not be
detained by the Attorney General on the basis of the alien’s
immigration status in the United States.” 8 U.S.C. 1254a(d)(4).
Moreover, the temporarily protected alien “may travel abroad with
the prior consent of the Attorney General” and “for purposes of
adjustment of status under [8 U.S.C. § 1255] and change of status
under [8 U.S.C. § 1258], the alien shall be considered as being
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An alien who applies for TPS and establishes a prima facie
case of eligibility is entitled to “temporary treatment benefits”
while his TPS application is pending. See 8 U.S.C.
§ 1254a(a)(4)(B); 8 C.F.R. § 244.10(a). Temporary treatment
benefits consist of two of the benefits available to aliens who
actually obtain TPS--namely, non-removability and employment
authorization. See U.S.C. § 1254a(a)(1) & (4)(B); 8 C.F.R.
§ 244.10(e).
After applying for TPS in May 2001 and paying the requisite
fees, Flores was issued an employment authorization card and a
social security card. Thus, he was deemed to have established a
prima facie case for eligibility, and accordingly, he was granted
temporary treatment benefits. See 8 C.F.R. § 244.10(e)
(“Temporary treatment benefits shall be evidenced by the issuance
of an employment authorization document.”). Thus, although the
government had not granted his application for TPS, Flores
acquired a temporary stay of removal pending disposition of his
application. See id.; see also 8 U.S.C. § 1254a(a)(1)(A) &
(4)(B).
In October 2002, while still awaiting the disposition of his
May 2001 application, Flores reapplied for TPS. In November
2002, Flores applied for and received an extension of his work
permit. Thus, during the relevant times, Flores maintained
in, and maintaining, lawful status as a nonimmigrant.” 8 U.S.C.
§ 1254a(f)(3)-(4); accord 8 C.F.R. § 244.10(f)(2)(iii)-(iv).
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temporary treatment benefits. Neither the May 2001 nor the
October 2002 TPS application had been ruled upon during the time
period relevant to his case.
Flores’s employment authorization, together with his social
security card and Texas identification card, allowed him to
obtain a commission as a private security officer from the Texas
Commission on Private Security. He was hired by a private
security firm, Bayou City Patrol, and worked as a security guard.
As part of his job, he carried a loaded firearm.
On June 8, 2003, as part of an ongoing investigation3 of
private security firms employing and arming illegal aliens as
security guards in Houston, Texas, Flores was arrested for
possession of a firearm while being an alien illegally or
unlawfully in the country in violation of 18 U.S.C.
§ 922(g)(5)(A). On July 8, a grand jury returned an indictment
charging Flores with a violation of 18 U.S.C. § 922(g)(5)(A).
Flores entered a plea of not guilty on July 13, 2003.
On September 22, Flores filed a motion to dismiss the
indictment. He argued that because he had applied for TPS and
had secured temporary treatment benefits prior to his arrest, he
was not an alien illegally or unlawfully in the United States.
3
This investigation was a cooperative effort involving
agents and officers from the Bureau of Alcohol, Tobacco, and
Firearms (the “ATF”), the Bureau of Immigration and Customs
Enforcement, the Texas Alcoholic Beverage Commission, the Houston
Police Department, the Texas Commission on Private Security, and
the Harris County Sheriff’s Office.
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The district court agreed and dismissed the indictment. The
government now appeals.
II. DISCUSSION
A. Dismissal of the Indictment under Rule 12
Initially, the government contends that the district court
erred procedurally in dismissing the indictment. We disagree,
however, because the district court based its disposition
entirely on its resolution of a legal question and the facts are
undisputed. Both Flores and the government agree that Flores
initially entered the country illegally. Both parties agree that
prior to his arrest, Flores applied for TPS and, while his TPS
applications were pending, he received an employment
authorization card and social security card.4 The sole question
in this case, therefore, is a question of law: whether Flores’s
application for TPS and subsequent receipt of temporary treatment
4
Furthermore, we note that both parties agree that
Flores had not actually received TPS before his arrest–-he had
received temporary treatment benefits but his TPS applications
were still pending. The opinion of the district court below
inexplicably states that Flores had been granted TPS. This
statement, to the extent that it was a factual finding, is
clearly erroneous. Nowhere in the record is it suggested that
the government ever disposed of Flores’s TPS applications (either
by granting or denying them), and uncontradicted testimony in the
record reveals that the government had not acted on Flores’s
applications. Citing only the district court opinion below,
Flores’s appellate brief to this court initially represented that
Flores had been granted TPS prior to his arrest. However,
Flores’s attorney admitted at argument that Flores’s applications
were still pending at the time of his arrest, and he apologized
for any misrepresentation in his brief regarding this fact
resulting from his reliance on the district court’s opinion.
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benefits cured his illegal entry into the United States for the
purposes of § 922(g)(5)(A).5
In this circuit, “‘[t]he propriety of granting a motion to
dismiss an indictment under [FED. R. CRIM. P.] 12 by pretrial
motion is by-and-large contingent upon whether the infirmity in
the prosecution is essentially one of law or involves
determinations of fact.’” United States v. Korn, 557 F.2d 1089,
1090 (5th Cir. 1977) (quoting United States v. Miller, 491 F.2d
638, 647 (5th Cir. 1974)). “If a question of law is involved,
then consideration of the motion is generally proper.”6 Id.
5
The government’s framing of the issue in the district
court in response to Flores’s motion to dismiss is illustrative
of the legal, as opposed to factual, nature of the question. The
government stated:
The issue before the Court is one of statutory
interpretation. Specifically, the issue is whether an
alien, who entered the United States without inspection
or authorization, is “illegally or unlawfully in the
United States,” within the meaning of Title 18, United
States Code, Section 922(g)(5)(A); and, if so, whether
(a) submission of an application or registration by
that alien for Temporary Protective Status, and/or (b)
the receipt of an Authorization Document, immunizes the
alien from prosecution under Section 922(g)(5)(A) by
altering his legal status.
Similarly, the government’s principal brief on appeal presents
the issue as a legal question of statutory interpretation and
describes the facts as uncontested.
6
As a number of other courts have recognized, “‘a
district court may make preliminary findings of fact necessary to
decide the questions of law presented by pre-trial motions so
long as the court’s findings on the motion do not invade the
province of the ultimate finder of fact.’” United States v.
Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986)
(quoting United States v. Jones, 542 F.2d 661, 664 (6th Cir.
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(citing United States v. Jones, 542 F.2d 661, 664 (6th Cir.
1976)). Thus, the district court did not err by considering the
purely legal question at hand in Flores’s pretrial motion. See
id.; see also United States v. Matassini, 565 F.2d 1297, 1313-14
(5th Cir. 1978) (affirming the district court’s dismissal of an
indictment based on its pretrial resolution of the defendant’s
complete legal defense that his pardon removed him from the ambit
of the felon-in-possession-of-a-firearm statute).
The government relies on a number of cases from other
circuits for the proposition that a district court may not look
beyond the face of the indictment and rule on the merits of the
charges pretrial. See, e.g., United States v. Salman, 378 F.3d
1266, 1267-68 (11th Cir. 2004) (per curiam);7 United States v.
1976)); United States v. Coia, 719 F.2d 1120, 1123 (11th Cir.
1983).
7
In Salman, the defendant was arrested under
§ 922(g)(5)(A) for possessing a firearm while being an alien
“illegally or unlawfully in the United States.” The defendant
filed a motion to dismiss the indictment, arguing that based on
undisputed facts, he was not “illegally or unlawfully in the
United States” as a matter of law at the time of his arrest.
Specifically, the defendant argued that he: (1) had an
application for adjustment of status pending; (2) was eligible to
file for permanent residency; and (3) was not unlawfully present
solely by virtue of his failure to maintain student status.
Salman, 378 F.3d at 1267. The district court agreed and
dismissed the indictment. The Eleventh Circuit reversed, holding
that “[b]y looking beyond the face of the indictment and ruling
on the merits of the charges against Salman, the district court
in effect granted summary judgment in favor of the defendant.”
Id. The Salman court relied upon Eleventh Circuit precedent,
stating that “[t]here is no summary judgment procedure in
criminal cases. Nor do the rules provide for a pre-trial
determination of sufficiency of the evidence.” Id. at 1268
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Jensen, 93 F.3d 667, 669-70 (9th Cir. 1996). Regardless of those
other courts’ conclusions, however, we are bound by our own
circuit’s precedent and, therefore, find no error in the district
court’s procedure of resolving a legal question in a pre-trial
motion to dismiss the indictment. See, e.g., Korn, 557 F.2d at
1090; Matassini, 565 F.2d at 1313-14; see also Hogue v. Johnson,
131 F.3d 466, 491 (5th Cir. 1997) (noting that one panel of this
circuit may not overturn another panel absent an intervening
decision to the contrary by the Supreme Court or this court en
banc).
Moreover, we believe that our approach is correct for a
number of reasons. First, in contrast to the Eleventh Circuit’s
conclusion, dismissing an indictment based on the resolution of a
legal question in the presence of undisputed facts is authorized
by the FEDERAL RULES OF CRIMINAL PROCEDURE. Rule 12(b)(2) provides
that “[a] party may raise by pretrial motion any defense,
objection, or request that the court can determine without a
trial of the general issue.” FED. R. CRIM. P. 12(b)(2). Because a
question of law presented in a case involving undisputed facts
can be determined without a trial of the general issue, Rule 12
(quoting United States v. Critzer, 951 F.2d 306, 307 (11th Cir.
1992)). The Salman court acknowledged that at least one circuit
(the Sixth Circuit) disagreed with its conclusion, but it noted
that cases from three other circuits--the Third, Eighth, and
Ninth--supported its resolution of the procedural issue. See id.
at 1268 n.5.
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authorized the district court to rule on Flores’s motion to
dismiss in this instance. This conclusion is supported by the
Supreme Court’s opinion in United States v. Covington, 395 U.S.
57, 60-61 (1969). In Covington, the defendant filed a pretrial
motion to dismiss the indictment on the ground that he had a
complete defense in that his Fifth Amendment privilege against
incrimination had been violated. The district court granted the
motion and dismissed the indictment. The government appealed to
the Supreme Court, which rejected the government’s contention
that the dismissal was improper and affirmed the district court.
The Court found that the district court properly ruled on the
pretrial motion because it involved an issue of law and not a
factual dispute. The Court noted that under FED. R. CRIM. P. 12, a
defense is “capable of determination without the trial of the
general issue . . . if trial of the facts surrounding the
commission of the alleged offense would be of no assistance in
determining the validity of the defense.” Covington, 395 U.S. at
60. Finally, our approach avoids the waste of judicial resources
that results from “legally meritless cases being sent to trial.”8
8
Our conclusion is further supported by the approaches
taken in the Sixth and Tenth Circuits. See, e.g., United States
v. Hall, 20 F.3d 1084, 1087-88 (10th Cir. 1994) (affirming the
district court’s dismissal of an indictment “where the operative
facts are undisputed and the government fails to object to the
district court’s consideration of those undisputed facts in
making the determination regarding a submissible case”); United
States v. Levin, 973 F.2d 463, 465-70 (6th Cir. 1992) (affirming
the district court’s dismissal of the indictment because the
undisputed facts allowed for a disposition of the legal question
without a trial); Jones, 542 F.2d at 664-66.
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Salman, 378 F.3d at 1269 (recognizing the disadvantages of
prohibiting a district court from making pretrial legal
determinations on undisputed facts). Accordingly, the district
court did not procedurally err.
B. Flores’s Legal Status
The government also argues that the district court erred on
the merits because it granted Flores’s motion to dismiss the
indictment after concluding that Flores was not “illegally or
unlawfully in the United States” and thus not in violation of
§ 922(g)(5)(A). The government claims that Flores’s application
for TPS and receipt of temporary treatment benefits did not alter
Flores’s status as an illegal alien for the purposes of
§ 922(g)(5)(A) and that he was therefore subject to prosecution
for possessing a firearm. We agree with the government.
“A challenge to an indictment based on the legal sufficiency
of uncontested facts is an issue of law reviewed de novo.”
United States v. Banks, 339 F.3d 267, 269 (5th Cir. 2003)
(emphasis omitted). We also analyze questions of statutory
interpretation de novo. See United States v. Fitch, 137 F.3d
277, 281 (5th Cir. 1998); see also United States v. Atandi, 376
F.3d 1186, 1188 (10th Cir. 2004) (“[W]e review de novo the
district court’s dismissal of the indictment based on its
interpretation of the underlying criminal statute.”).
Section 922(g)(5)(A) provides: “It shall be unlawful for
any person . . . who, being an alien . . . is illegally or
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unlawfully in the United States . . . [to] possess in or
affecting commerce, any firearm or ammunition . . . .” The
phrase “illegally or unlawfully in the United States” is not
defined by the statute. We must construe undefined statutory
terms “in accordance with [their] ordinary and natural meaning,
as well as the overall policies and objectives of the statute.”
United States v. Lowe, 118 F.3d 399, 402 (5th Cir. 1997)
(internal citations omitted).
We read the phrase “illegally or unlawfully in the United
States” in § 922(g)(5)(A) to include those aliens, like Flores,
who entered the country illegally and subsequently qualified for
temporary treatment benefits under 8 U.S.C. § 1254a. Our
interpretation is informed by the administrative regulations
promulgated by the ATF interpreting § 922(g)(5)(A). See 27
C.F.R. § 478.11. Those regulations define an “[a]lien illegally
or unlawfully in the United States” as an alien who is “not in
valid immigrant, nonimmigrant or parole status[;] [t]he term
includes any alien . . . [w]ho unlawfully entered the United
States without inspection and authorization by an immigration
officer and who has not been paroled into the United States under
section 212(d)(5) of the Immigration and Nationality Act (INA) .
. . .” See id. Although interpreting 18 U.S.C. § 922(g)(5)(A)
poses a question involving a mixture of both immigration and
criminal law, Congress delegated authority to implement § 922(g)
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to the ATF.9 See 18 U.S.C. § 926(a) (authorizing “such rules and
regulations as are necessary to carry out the provisions of this
chapter”). Thus, without deciding whether full Chevron10
deference is appropriate in this instance, we owe at least some
degree of deference to the ATF’s interpretive regulation of
§ 922(g)(5)(A) because it is “both reasonable and consistent with
our interpretive norms for criminal statutes.” Atandi, 376 F.3d
at 1189 (affording “some deference” to the ATF’s interpretation
of § 922(g)(5)(A)) (citing Babbitt v. Sweet Home Chapter of
Cmtys. for a Greater Or., 515 U.S. 687, 703 (1995)). Under
§ 478.11, Flores is an alien illegally or unlawfully in the
United States because he “unlawfully entered the United States
without inspection and authorization by an immigration officer”
and because his application for TPS and receipt of temporary
treatment benefits did not constitute a “parole[] into the United
States under section 212(d)(5) of the [INA].” 27 C.F.R.
§ 478.11; see also 8 U.S.C. § 1182(d)(5)(A); 8 U.S.C. § 1254a.
Flores argues that he was not in the United States illegally
or unlawfully once he received temporary treatment benefits
because those benefits--namely, a stay of removal and an
employment permit--“authorized” him to be in the country. He
9
Moreover, neither the INA, 8 U.S.C. § 1101 et seq., nor
its corresponding immigration regulations define the phrase
“illegally or unlawfully in the United States.”
10
Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837 (1984).
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argues that under United States v. Igbatayo, 764 F.2d 1039 (5th
Cir. 1985), such authorization shields him from prosecution under
§ 922(g)(5)(A). Igbatayo, however, stands for no such
proposition. There we stated:
[I]t is clear that an alien who is in the United States
without authorization is in the country illegally.
After failing to maintain the student status required
by his visa, Igbatayo was without authorization to
remain in this country. He thus was in the same
position legally as the alien who wades across the Rio
Grande or otherwise enters the United States without
permission.
Igbatayo, 764 F.2d at 1040. As Igbatayo explains, an alien
without any authorization whatsoever is in the country illegally.
That conclusion is obvious. But it does not follow that an alien
who has been granted limited temporary authorization (i.e., a
temporary stay of removal and a temporary work permit) is in the
country legally for all purposes, rendering him immune to
prosecution under § 922(g)(5)(A). Rather, consistent with
Igbatayo, an alien may be temporarily granted a stay of removal
and be permitted to work during that stay, but still be
considered “illegally or unlawfully in the United States.” See
Hussein v. INS, 61 F.3d 377, 381 (5th Cir. 1995) (holding that a
temporary stay of removal “did not change the alien’s previously
illegal status into a lawful status”); United States v. Bazargan,
992 F.2d 844, 848-49 (8th Cir. 1993) (holding that an alien was
illegally in the United States for the purposes of § 922(g)(5)(A)
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despite his receipt of employment authorization).11 Thus, despite
his receipt of temporary treatment benefits pending disposition
of his application for TPS, Flores remained illegally or
unlawfully in the United States under § 922(g)(5)(A).12
11
Flores also cites United States v. Brissett, 720 F.
Supp. 90 (S.D. Tex. 1989), for the proposition that he was not
illegally or unlawfully in the country under § 922(g)(5)(A)
because he received a stay of removal and an employment
authorization document. Brissett, however, involved an alien
whose application for an adjustment of status to permanent
resident was pending at the time of his arrest--not an alien who,
like Flores, applied only for TPS. TPS differs from an
adjustment of status to permanent resident both in the temporary
treatment benefits conferred upon qualified applicants, compare
Brissett, 720 F. Supp. at 91, with 8 U.S.C. § 1254a(a)(4), as
well as in the benefits conferred upon those aliens whose
applications are granted. See 8 U.S.C. § 1254a(a); 8 U.S.C.
§ 1255; see also 8 U.S.C. § 1254a(f)(1) (“During a period in
which an alien is granted temporary protected status under this
section . . . the alien shall not be considered to be permanently
residing in the United States under color of law.”). Thus, we
need not, and do not, decide whether the district court in
Brissett reached the correct conclusion.
12
At oral argument, Flores also pointed to 8 U.S.C.
§ 1254a(f) in support of his contention that he was not illegally
or unlawfully in the United States. Section 1254(a)(f) provides:
During a period in which an alien is granted temporary
protected status under this section[,] . . . for
purposes of adjustment of status under section 1255 of
this title and change of status under section 1258 of
this title, the alien shall be considered as being in,
and maintaining, lawful status as a nonimmigrant.
8 U.S.C. § 1254a(f)(4). This provision, however, is irrelevant
to Flores’s case for at least two reasons. First, Flores applied
for, but had not been granted, TPS prior to his arrest for
possession of a firearm. Section 1254a(f)(4) applies only to
those aliens who have been granted TPS. See 8 U.S.C.
§§ 1254a(a)(4), (f). Second, § 1254a(f)(4) explicitly states
that an alien with TPS shall be considered as being in, and
maintaining, lawful status “for purposes of adjustment of status
under section 1255 . . . and change of status under section 1258
. . . .” 8 U.S.C. § 1254a(f)(4) (emphasis added). This
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III. CONCLUSION
For the foregoing reasons, we REVERSE the judgment of the
district court and REMAND for further proceedings not
inconsistent with this opinion.
provision merely affects a temporarily protected alien’s ability
to seek an adjustment or change in status; it does not alter an
alien’s legal status for the purposes of § 922(g)(5)(A). See
generally 8 U.S.C. §§ 1255, 1258.
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