United States Court of Appeals
Fifth Circuit
F I L E D
In the United States Court of Appeals
April 5, 2005
For the Fifth Circuit
Charles R. Fulbruge III
_________________________ Clerk
No. 04-20094
_________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE NARCISO ORELLANA,
Defendant - Appellant.
_________________________
Appeal from the United States District Court
For the Southern District of Texas
_________________________
Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Defendant Jose Narciso Orellana appeals the district court’s
final judgment of conviction sentencing him to eighteen months’
imprisonment. Orellana was indicted under 18 U.S.C. § 922(g)(5)(A)
for possessing a firearm while being an alien “illegally or
unlawfully in the United States.” Before trial, Orellana sought
dismissal of his indictment on grounds that he was legally present
on account of his temporary protected status. The district court
denied this request, and Orellana was subsequently convicted at a
bench trial. Because we conclude that it is uncertain whether
Congress intended to criminalize the possession of firearms by
aliens in receipt of lawful temporary protected status, we apply
the rule of lenity and reverse.
I
Orellana is a citizen of El Salvador. He entered the United
States without inspection at Douglas, Arizona, in February of 2000,
and has continuously remained in the United States. In March 2001,
El Salvador suffered three severe earthquakes, substantially
disrupting living conditions in the country. In response to this
disaster, the United States Attorney General exercised his
authority under 8 U.S.C. § 1254a (“section 1254a”) and designated
El Salvador for protected status.1 By virtue of this designation,
nationals of El Salvador may apply for temporary protected status
(“TPS”), allowing them to remain in the United States and obtain
employment until the country designation is lifted or their
temporary protected status is withdrawn.
Upon learning of El Salvador’s designation, Orellana filed a
TPS application along with an application for an Employment
Authorization Document. In his TPS application, Orellana disclosed
that he was present in the United States illegally. Both of his
applications were granted, and Orellana secured employment as an
armed security guard for Bayou City Patrol Division, a Houston
1
See Designation of El Salvador Under Temporary Protected Status Program,
66 Fed. Reg. 14,214 (March 9, 2001).
2
private security company.2
The owner of Bayou City Patrol, Manuel Rodriguez, accompanied
Orellana to a local pawn shop where he purchased a Taurus 9mm
caliber handgun for Orellana’s use in his role as a security guard.
Using a Social Security Number that was not his own, Orellana
obtained a Texas Commissioned Security Officer Card issued by the
State of Texas and required to be presented to law enforcement
officers upon request by all armed security guards. Orellana then
obtained a valid Social Security Number from the Bureau of
Immigration and Customs Enforcement, but failed to change the
number on file with the Texas Commission on Private Security.
On June 8, 2003, as a result of an ongoing investigation of
private security firms employing and arming illegal aliens as
security guards in the Houston area, federal and local law
enforcement agents encountered Orellana while he was working
outside a Houston nightclub. He was carrying his Taurus 9mm
handgun, and upon demand presented his Texas Commissioned Security
Officer Card. The agents took Orellana into custody. After
waiving his constitutional rights, Orellana admitted that he had
entered the United States illegally, and that he had obtained his
Commissioned Security Officer Card using a false Social Security
Number. Orellana also informed the agents that he had obtained an
Employment Authorization Document and had been granted TPS as a
2
It is unclear from the record whether Orellana’s applications were
approved before or after he secured this employment.
3
citizen of El Salvador.
Orellana was indicted under 18 U.S.C. § 922(g)(5)(A) (“section
922(g)(5)(A)”) for being an alien illegally or unlawfully in the
United States in possession of a firearm. Orellana filed a motion
to dismiss the indictment on grounds that he was not present in the
United States illegally or unlawfully as he had been granted TPS.
The district court denied Orellana’s motion to dismiss, finding
that his TPS registration did not alter his status as an illegal
immigrant. After a bench trial, Orellana was found guilty and
sentenced to eighteen-months’ imprisonment followed by a three-year
term of supervised release. He filed a timely notice of appeal.
II
The sole question we must address in this appeal is whether an
alien who enters the United States without inspection and
subsequently receives TPS is “illegally or unlawfully in the United
States” under section 922(g)(5)(A). Orellana argues that the
district court erred in failing to dismiss his indictment because
he was legally and lawfully present in the United States at the
time alleged in his indictment as a result of his temporary
protected status. The Government dismisses this argument,
contending that TPS confers nothing more than a temporary stay of
removal and has no impact upon the legality of an alien’s presence
in the United States.
We address these contentions by first looking to the nature of
the benefits conferred upon an alien who receives TPS. We then
4
turn to consider whether receipt of TPS renders an alien’s presence
legal for purposes of section 922(g)(5)(A).
A
We begin by looking to the TPS statute to determine the nature
and effect of TPS upon a recipient alien.3 Congress first made TPS
available via the Immigration Act of 19904 in response to the
problem posed by the presence of aliens from “countries
experiencing apparently temporary disruptions creating situations
in which providing temporary refuge in the United States was an
appropriate policy.”5
In order for an alien to be eligible for TPS, the alien must
first be a national of a foreign state “designated” by the Attorney
General.6 A foreign state may be designated only if certain
conditions are present which, in general, prevent nationals of that
state from returning in safety.7 In order to qualify for TPS, an
alien who is a national of a designated foreign state must (1) be
continuously present in the United States since the effective date
of the most recent designation of that state; (2) continuously
3
We note at the outset that the Government does not dispute that Orellana
was properly registered for TPS at the time of his arrest.
4
Pub. L. No. 101-649, 104 Stat. 4978.
5
RICHARD D. STEEL, IMMIGRATION LAW § 8:16 (2d ed. 2002).
6
8 U.S.C. § 1254a(a)(1)
7
These conditions include ongoing armed conflict within the state, natural
disasters such as earthquakes or floods, and other “extraordinary and temporary
conditions.” See 8 U.S.C. § 1254a(b)(1)(A)-(C).
5
reside in the United States from the date that the Attorney General
designates; (3) be admissible as an immigrant, subject to certain
exceptions; and (4) register during an appropriate registration
period.8 An otherwise qualified alien will be ineligible for TPS
if the alien has committed a felony or two misdemeanors in the
United States, or is ineligible for asylum under 8 U.S.C.
§ 1158(b)(2)(A).9
An alien whose TPS application is approved receives a number
of important benefits. First, the alien may not be removed from
the United States so long as the registration is in effect.10
Second, the alien may seek authorization to engage in employment.11
Third, the alien may travel abroad with the prior consent of the
8
8 U.S.C. § 1254a(c)(1)(A)(i)-(iv). Technically, Orellana was not
eligible for TPS because he had entered the country without inspection and was
inadmissible at the time of his application. See 8 U.S.C. § 1254a(c)(1)(A)(ii).
However, Orellana disclosed his illegal entry on his TPS application, and this
application was subsequently granted. This raises an inference that Orellana’s
inadmissibility was waived by the Attorney General. See 8 U.S.C.
§ 1254a(c)(2)(A)(ii) (“[E]xcept as provided in clause (iii), the Attorney General
may waive any other provision of section 1182(a) of this title in the case of
individual aliens for humanitarian purposes, to assure family unity, or when it
is otherwise in the public interest[.]”).
9
8 U.S.C. § 1254a(c)(2)(B). An alien will be ineligible for asylum if the
Attorney General determines that, inter alia, (1) the alien has somehow
participated in the persecution of a person based on race, religion, nationality,
membership in a social group, or political opinion; (2) the alien has been
convicted by final judgment of a “particularly serious crime” and constitutes a
danger to the people of the United States; (3) there are serious grounds for
believing that the alien committed a serious nonpolitical crime outside the
United States prior to the alien’s arrival; and (4) there are reasonable grounds
for regarding the alien as a danger to U.S. security. 8 U.S.C.
§ 1158(b)(2)(A)(i)-(iv).
10
See 8 U.S.C. § 1254a(a)(1)(A).
11
See 8 U.S.C. § 1254a(a)(1)(B).
6
Attorney General.12 Fourth, the alien is considered to be in lawful
immigration status as a non-immigrant for purposes of adjustment of
status under 8 U.S.C. §§ 1255, 1258.13
These benefits are tempered, however, in several ways. TPS
may be withdrawn if the Attorney General finds that a registered
alien is statutorily ineligible, the alien fails to maintain
continuous physical presence in the United States subject to
certain exceptions, or the alien fails to register at the end of
each twelve-month period following his initial receipt of TPS.14
Furthermore, as a practical matter, TPS registration necessarily
discloses an otherwise illegal alien’s whereabouts, facilitating
removal if the alien is later determined ineligible or has his
status withdrawn.15
The Attorney General is required to provide all TPS recipients
with information concerning their status.16 Specifically, an alien
must be provided with a registration document and a notice that
lists the benefits of TPS and informs the alien that failure to
maintain TPS eligibility and register annually will result in
withdrawal of TPS and possible deportation.17
12
See 8 U.S.C. § 1254a(f)(3).
13
See 8 U.S.C. § 1254a(f)(4).
14
See 8 U.S.C. § 1254a(c)(3)(A)-(C).
15
See STEEL, supra note 5, § 8:16.
16
8 U.S.C. § 1254a(a)(3)(A).
17
8 C.F.R. § 244.10(f)(1), (2)(i)-(v), (4)(i)-(iii) (2004).
7
An alien registered for TPS is not required to surrender non-
immigrant or any other status that he may previously have been
granted, and may acquire non-immigrant status if he has not already
done so.18 In addition, while registered for TPS an alien may not
“be detained by the Attorney General on the basis of the alien’s
immigration status in the United States.”19 When the Attorney
General terminates a country’s TPS designation, registered
nationals of that country return to the same immigration status
they maintained before TPS, provided such status has not expired or
been terminated, or to any other status they may have been granted
while registered for TPS.20
Although few courts have discussed the effect of TPS upon the
legality of an alien’s presence in the United States, those that
have done so have generally found that TPS renders an alien’s
presence lawful.21 In addition, aliens with TPS are considered to
18
8 U.S.C. § 1254a(a)(5).
19
8 U.S.C. § 1254a(d)(4).
20
See 66 Fed. Reg. at 14,214.
21
See Okpa v. INS, 266 F.3d 313, 315 (4th Cir. 2001) (“TPS allows an alien
to remain in the United States legally . . . .”); Equal Access Educ. v. Merten,
305 F. Supp. 2d 585, 597 (E.D. Va. 2004) (finding that an alien who enjoys TPS
is “not unlawfully present in the United States,” and “currently resides in the
United States legally”); League of United Latin Am. Citizens v. Wilson, 908 F.
Supp. 755, 778 (C.D. Cal. 1995) (describing TPS as a category of “lawful
immigration status”); but see Saccoh v. INS, 24 F. Supp. 2d 406, 407 (E.D. Pa.
1998) (finding that an alien whose request for extension of voluntary departure
was denied was unlawfully present but protected from removal under TPS).
8
be in a “valid status” for purposes of applying for asylum,22 and
to be “lawfully present in the United States” for purposes of
applying for Title II Social Security benefits.23 However, aliens
with TPS are not considered to be “permanently residing in the
United States under color of law,”24 precluding their receipt of
such things as unemployment and SSI benefits.25
In summary, aliens who apply for and receive TPS are allowed
to remain in the United States and work, provided that they
register annually and their country of nationality remains
designated. They are ineligible for most public assistance
programs, but are allowed to apply for adjustment of status as if
they possessed lawful non-immigrant status. While registered for
TPS, an alien maintains any pre-existing immigration status he
previously obtained, and may acquire a new immigration status.
Once TPS is withdrawn, an alien reverts to any immigration status
that he maintained or was granted while registered for TPS.
B
We now consider whether an alien’s receipt of TPS renders his
22
See 8 C.F.R. § 208.14(c)(2) (2004). TPS itself is described by the U.S.
Citizenship and Immigration Service as a valid form of “temporary immigration
status granted to eligible nationals of designated countries (or parts thereof).”
See U.S. Citizenship and Immigration Services, What is Temporary Protected
Status?, at http://uscis.gov/graphics/services/tps_inter.htm#whatistps (last
visited March 25, 2005).
23
See 8 C.F.R. § 103.12(a)(4)(ii) (2004).
24
8 U.S.C. § 1254a(f)(1).
25
See 26 U.S.C. § 3304(a)(14)(A); 20 C.F.R. § 416.1619 (2004); see
generally 20 C.F.R. § 416.1618 (2004).
9
presence in the United States lawful under section 922(g)(5)(A).
We review this question of statutory interpretation de novo.26
When interpreting a statute, we begin with “the language of
the statute itself.”27 We follow the “plain and unambiguous meaning
of the statutory language,” interpreting undefined terms according
to their ordinary and natural meaning and the overall policies and
objectives of the statute.28 If the statute is ambiguous, we may
look to the legislative history or agency interpretations for
guidance.29
Section 922(g)(5)(A) provides: “It shall be unlawful for any
person . . . who, being an alien . . . is illegally or unlawfully
in the United States . . . [to] possess in or affecting commerce,
any firearm of ammunition . . . .”30 The words “illegally” and
“unlawfully” are not statutorily defined, and must therefore be
given their ordinary and natural meaning. We have observed that
“[d]ictionaries are a principal source for ascertaining the
26
See See Rogers v. San Antonio, 392 F.3d 758, 761 (5th Cir. 2004); United
States v. Banks, 339 F.3d 267, 269 (5th Cir. 2003) (“A challenge to an indictment
based on the legal sufficiency of uncontested facts is an issue of law reviewed
de novo.”).
27
Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108
(1980).
28
United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004) (quoting Salinas
v. United States, 522 U.S. 52, 57 (1997)) (citation and internal quotation marks
omitted).
29
Id.
30
18 U.S.C. § 922(g)(5)(A).
10
ordinary meaning of statutory language[.]”31 Black’s Law Dictionary
defines “illegal” as “[f]orbidden by law; unlawful,”32 and defines
“unlawful” as “[n]ot authorized by law; illegal.”33 Webster’s
Collegiate Dictionary defines “illegal” as “not according to or
authorized by law,”34 and “unlawful” as “not lawful; not morally
right or conventional.”35 Read within the context of section
922(g)(5)(A), these definitions indicate that an alien “illegally
or unlawfully in the United States” is an alien whose presence
within the United States is forbidden or not authorized by law.36
Here, Orellana entered the country without inspection, making
his initial presence unlawful. However, he subsequently applied
for and was granted TPS. As a result, Orellana was granted
protection from removal, authorized to seek employment, and given
the ability to apply for adjustment of status as if he were in
lawful non-immigrant status. While it is true that upon withdrawal
of TPS, Orellana would “revert” to his original illegal immigration
31
Thompson v. Goetzmann, 337 F.3d 489, 497 n.20 (5th Cir. 2003).
32
BLACK’S LAW DICTIONARY 763 (8th ed. 2004).
33
Id. at 1574.
34
MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 577 (10th ed. 1993).
35
Id. at 1294.
36
This definition is consistent with our description of an illegal alien
as one who is “in the United States without authorization.” United States v.
Igbatayo, 764 F.2d 1039, 1040 (5th Cir. 1985). In Igbatayo, we held that an
alien who entered the United States on student non-immigrant status and
subsequently failed to maintain his status as a student as required by his visa
was “in the same position legally as the alien who wades across the Rio Grande
or otherwise enters the United States without permission.” Id.
11
status, he was in a form of lawful status throughout the time his
TPS registration was effective. Thus, the plain language of
section 922(g)(5)(A) provides support for the proposition that his
presence in the United States was lawful at the time alleged in his
indictment. At the very least, it does not unambiguously indicate
that his presence was unlawful.
Turning to the overall structure of 18 U.S.C. § 922 for
additional guidance, we find that it sets forth many restrictions
upon the possession, sale, delivery, shipment, transportation, or
transfer of firearms by specific persons. In particular, section
922(g) criminalizes the possession or receipt of firearms
transported or shipped in interstate commerce by certain categories
of persons, including convicted felons, fugitives from justice,
unlawful users of controlled substances, persons adjudicated
mentally defective, persons dishonorably discharged from the Armed
Forces, persons who have renounced their United States citizenship,
persons subject to certain restraining orders, and persons
convicted of misdemeanor crimes of domestic violence.37 In addition
to these categories, section 922(g)(5)(B)38 prohibits aliens
admitted under certain non-immigrant visas from possessing firearms
37
18 U.S.C. § 922(g)(1)-(4), (6)-(9).
38
This section was added by Congress in 1998. See Omnibus Consolidated
and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277,
§ 101(b), 112 Stat. 2681 (1998).
12
without a waiver from the Government.39 These provisions
demonstrate that the objective of section 922(g) is to prohibit
persons within specifically defined groups from possessing,
receiving, or transporting firearms. Moreover, the specific types
of groups selected for disqualification indicate that the purpose
of the statute is that of keeping firearms out of the hands of
those typically considered dangerous or irresponsible.
This understanding of the purpose of section 922(g)(5)(A) is
reinforced by examining the statute’s legislative history. Section
922(g)(5)(A) had its origins in Title VII of the Omnibus Crime
Control and Safe Streets Act of 1968,40 as amended by the Gun
Control Act of 1968.41 The Crime Control and Safe Streets Act
“started its life as a measure designed to aid state and local
governments in law enforcement by means of financial and
administrative assistance.”42 Title VII of the Act, introduced as
a floor amendment by Senator Russell Long from Louisiana, was
“hastily passed, with little discussion, no hearings and no
report.”43
Title VII criminalized the receipt, possession or
39
See 18 U.S.C. § 922(g)(5)(B), (y)(3).
40
Pub. L. No. 90-351, 82 Stat. 197 (1968).
41
Pub. L. No. 90-618, 82 Stat. 1231 (1968).
42
United States v. Bass, 404 U.S. 336, 344 n.11 (1971).
43
Id. at 344.
13
transportation of a firearm in or affecting interstate commerce by
various persons, including convicted felons, mental incompetents,
and “alien[s] . . . illegally or unlawfully in the United States.”44
Senator Long indicated that his introduction of Title VII was
motivated by the rise of political assassinations and violence in
the United States,45 and his desire to keep firearms away from
likely perpetrators.46 Senator Joseph Tydings reiterated this
concern, noting that the broad purpose of the 1968 Act was “to make
it possible to keep firearms out of the hands of those not legally
entitled to possess them because of age, criminal background, or
incompetency.”47 Echoing Senator Tydings’ remarks, Congressman
Emanuel Celler, the House Manager of the Act, stated that the “bill
seeks to maximize the possibility of keeping firearms out of the
hands of such persons” as “drug addicts, mental incompetents,
44
18 U.S.C. App. § 1202(a)(5), repealed by Firearm Owner’s Protection Act,
Pub. L. No. 99-308, 100 Stat. 449 (May 19, 1986).
45
See Lewis v. United States, 445 U.S. 55, 63 (1980) (“It is not without
significance, furthermore, that Title VII, as well Title IV of the Omnibus Act,
was enacted in response to the precipitous rise in political assassinations,
riots, and other violent crimes involving firearms, that occurred in this country
in the 1960's.”); Bass, 404 U.S. at 345 (“On the Senate floor, Senator Long, who
introduced s 1202, described various evils that prompted his statute . . .
[including] assassinations of public figures and threats to the operation of
businesses significant enough in the aggregate to affect commerce.”).
46
114 Cong. Rec. 14,773-74 (1968) (“[U]nder Title VII, every citizen could
possess a gun until the commission of his first felony. Upon his conviction,
however, Title VII would deny every assassin, murderer, thief and burglar of the
right to possess a firearm in the future. . . . Despite all that has been said
about the need for controlling firearms in this Country, no other amendment
heretofore offered would get at the Oswalds or the Galts. They are the types of
people at which Title VII is aimed.”)
47
S. Rep. No. 1501, at 22 (1968).
14
persons with a history of mental disturbances, and persons
convicted of certain offenses . . . .”48
The U.S. Supreme Court has frequently cited to and expounded
upon this legislative history when interpreting Title VII. In
Huddleston v. United States, the Court noted that “[t]he principal
purpose of the federal gun control legislation . . . was to curb
crime by keeping ‘firearms out of the hands of those not legally
entitled to possess them because of age, criminal background, or
incompetency.’”49 In Barrett v. United States, the Court declared
that “[t]he very structure of the Gun Control Act demonstrates that
Congress did not intend merely to restrict interstate sales but
sought broadly to keep firearms away from the persons Congress
classified as potentially irresponsible and dangerous.”50 In
Scarborough v. United States, the Court observed that the
“legislative history [of Title VII] . . . supports the view that
Congress sought to rule broadly to keep guns out of the hands of
those who have demonstrated that ‘they may not be trusted to
possess a firearm without becoming a threat to society.’”51
By including illegal aliens within the ambit of Title VII’s
prohibitions, Congress evidently believed that such aliens came
48
114 Cong. Rec. 21,784 (1968).
49
415 U.S. 814, 824 (1974) (quoting S. Rep. No. 1501, at 22 (1968)).
50
423 U.S. 212, 218 (1976).
51
431 U.S. 563, 573 (1977) (quoting 114 Cong. Rec. 14,773 (1968) (remarks
of Senator Long)).
15
within the class of untrustworthy persons whose possession of
firearms would constitute a threat to society. In upholding
section 1202(a)(5), section 922(g)(5)(A)’s predecessor statute,
against an equal protection challenge, the Second Circuit validated
this proposition, noting that “[i]llegal aliens are aliens who have
already violated a law of this country.”52 The court observed that
illegal aliens are “likely to maintain no permanent address in this
country, elude detection through an assumed identity, and--already
living outside the law--resort to illegal activities to maintain a
livelihood.”53
Congress’s decision to include illegal aliens within the
categories of persons who are prohibited from possessing firearms
does not necessarily indicate an intent to include within the
prohibition aliens in receipt of TPS. Unlike illegal aliens who
attempt to avoid detection, aliens registered for TPS have
purposefully revealed their whereabouts to the government with the
intent of receiving legal protection from deportation and
authorization to seek employment. As a result, such aliens are not
part of an underground population of persons who, unable to secure
lawful employment, have a greater likelihood to engage in criminal
conduct. Further, an alien’s application for TPS will be denied if
it is determined that the alien has committed a serious crime, or
52
United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984).
53
Id. at 128-29 (quoting United States v. Toner, No. CR82-377 (E.D.N.Y.
May 17, 1983) (order denying motion to dismiss a portion of an indictment)).
16
otherwise represents a danger to the people of the United States.54
Little in this structure signals a Congressional purpose of
criminalizing firearm ownership by aliens present under a lawful
status. Nor are we aided by the fact that the TPS statute was
enacted long after the passage of the Gun Control Act.
The Government urges that we should look for guidance to a
regulatory definition of section 922(g)(5)(A) promulgated by the
Bureau of Alcohol, Tobacco and Firearms. This regulation provides
in relevant part that “[a]liens who are unlawfully in the United
States are not in valid immigrant, non-immigrant or parole
status.”55 The regulation further provides that this “term includes
any alien . . . [w]ho unlawfully entered the United States without
inspection or 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).”56 The Government argues
that this regulation clearly provides that Orellana is illegally
present as he entered without inspection and has not been paroled.
We decline the Government’s invitation to afford weight to the
ATF regulation for a number of reasons. First, the legal status of
an alien who is granted TPS is uncertain. It is clear that an
54
See supra note 9.
55
27 C.F.R. § 478.11 (2004).
56
Id.
17
alien in receipt of TPS is in a valid status of some type.57 The
word “immigrant” in the regulation likely refers only to those
aliens who are in lawful permanent residents.58 However,
“immigrant” is also used in the INA as a generic catchall word to
refer to “any alien except one who is classified in one of the
specified nonimmigrant categories.”59 That is, we do not know the
breadth of the term from the regulation.
Second, although some deference is due an agency’s
interpretation of a criminal statute,60 the level of deference due
an agency’s interpretation of a statute imposing criminal liability
is uncertain, particularly when the promulgating agency lacks
expertise in the subject matter being interpreted.61 While the ATF
was delegated authority to implement section 922(g),62 its field of
expertise lies outside the realm of immigration law. Further,
57
See supra note 21 and accompanying text.
58
See STEEL, supra note 5, § 2:24 (“The terms or concepts immigrant,
permanent resident, permanent resident alien, ‘green card’ holder, or ‘blue card’
holder, are synonymous.”).
59
Id.; see also 8 U.S.C. § 1101(a)(15) (listing the forms of valid non-
immigrant status).
60
See Babbit v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S.
687, 703 (1995) (agency regulation interpreting provisions of the Endangered
Species Act imposing criminal liability entitled to “some degree of deference”).
61
See Nat’l Labor Relations Bd. v. Okla. Fixture Co., 332 F.3d 1284, 1287
(10th Cir. 2003) (noting that it is “not entirely clear exactly how the Chevron
analysis is affected by the presence of criminal liability in a statute being
interpreted by an agency,” and that deference may depend upon “considerations of
the agency’s particular expertise”).
62
See 18 U.S.C. § 926(a) (1994), amended by Homeland Security Act of 2002,
Pub. L. No. 107-296, § 1112(f)(6), 116 Stat. 2135 (striking “Secretary” and
inserting “Attorney General” throughout the statute).
18
given that the plain language and legislative history of section
922(g)(5)(A) lend support to the proposition that an alien who is
granted TPS is legally present in the United States, affording
conclusive weight to a questionable interpretation of an agency
regulation cutting the opposite way for the purpose of imposing
criminal liability is inappropriate.
Third, we note that in a recent case, the Government expressed
reservations as to whether the ATF regulation as a whole is
entitled to any level of deference whatsoever.63 Taken together,
these considerations militate against affording the ATF regulation
dispositive weight in the present case.
We are also directed to our court’s recent decision in United
States v. Flores64 holding that an alien who has received temporary
benefits on account of his application for TPS is not lawfully
present for purposes of section 922(g)(5)(A). In Flores, we found
that an alien’s receipt of such temporary benefits as protection
from removal and authorization to seek employment did not render
him immune to prosecution under section 922(g)(5)(A) when he had
entered the country illegally and had not received a valid form of
63
See United States v. Gayle, 342 F.3d 89, 93 n.4 (2d Cir. 2004) (“We
requested briefing from [the Government and the defendant] on the import of [27
C.F.R. § 478.11], and both parties agreed that ATF’s interpretation of a criminal
statute is not entitled to deference under Chevron . . . even if the statute were
ambiguous.”).
64
No. 04-20109, 2005 WL 603073 (5th Cir. March 16, 2005).
19
immigration status.65
We find this decision unassailably correct. Receipt of
temporary benefits such as employment authorization or a temporary
stay of removal does not render an otherwise illegal alien’s
presence lawful.66 Here, however, we are not dealing solely with
the temporary extension of benefits pending an administrative
ruling upon an application; rather, we are faced with an alien who
was actually granted TPS. Unlike an applicant for TPS, whose
benefits are limited to protection from removal and temporary work
authorization,67 an alien whose application for TPS is granted also
receives the privileges of applying for adjustment of status and of
traveling abroad with prior consent.68 Importantly, an alien in
receipt of TPS is in lawful status, whereas an alien who has merely
been extended temporary benefits awaiting the disposition of his
application for lawful status may be (and often is) in an unlawful
immigration status. We find these differences not without
significance, and therefore decline to extend our holding in Flores
to the facts of this case.
Turning to the balance of cases addressing the legality of an
65
Id. at *4-*5.
66
See Hussein v. INS, 61 F.3d 377, 381 (5th Cir. 1995) (holding that a
temporary stay of removal did not change an alien’s previous illegal status into
a legal status); United States v. Bazargan, 992 F.2d 844, 848-49 (8th Cir. 1993)
(holding that an alien was illegally present under section 922(g)(5)(A) despite
his receipt of employment authorization).
67
See 8 C.F.R. § 244.10(e)(i)-(ii) (2004).
68
See 8 U.S.C. § 1254a(f)(3)-(4); 8 C.F.R. § 244.10(f) (2004).
20
alien’s presence pursuant to section 922(g)(5)(A), we find no
authority for the proposition that an alien who has acquired a
valid status is “illegally” or “unlawfully” present in the United
States. Rather, we find that these cases deal exclusively with
scenarios in which an alien has been extended benefits pending the
outcome of his or her application for valid status, or lacks any
status whatsoever.69
III
Given the ambiguity of section 922(g)(5)(A), the questionable
interpretation and weight of the ATF regulation, and the absence of
binding case law on point, we are constrained to apply the rule of
lenity in this case. The rule of lenity provides that “when [a]
choice must be made between two readings of what conduct Congress
has made a crime, it is appropriate, before choosing the harsher
alternative, to require that Congress should have spoken in
language that is clear and definite.”70 The policy underlying the
69
See, e.g., United States v. Atandi, 376 F.3d 1186, 1188 (10th Cir. 2004)
(alien whose wife had filed an I-130 petition on his behalf but who had neglected
to file an application for adjustment of status was illegally present); United
States v. Hernandez, 913 F.2d 1506, 1513 (10th Cir. 1990) (alien who entered
illegally was illegally present when he acquired a handgun prior to filing his
application for amnesty); United States v. Garcia, 875 F.2d 257, 257-58 (9th Cir.
1989) (illegal alien not entitled to jury instruction that he was legally present
if the jury found that the INS was aware of his presence and consented to it);
Igbatayo, 764 F.2d at 1040 (alien whose non-immigrant student status had expired
was present illegally); United States v. Revuelta, 109 F. Supp. 2d 1170, 1174-77
(N.D. Cal. 2000) (alien whose wife had filed an I-130 petition on his behalf but
who was not yet eligible to file an application for adjustment of status was
illegally present); United States v. Brissett, 720 F. Supp. 90, 90 (S.D. Tex.
1989) (alien whose visitor’s visa had expired was legally present when he was in
the process of seeking adjustment of status to lawful permanent resident).
70
Jones v. United States, 529 U.S. 848, 849-50 (2000) (citing United
States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22 (1952)).
21
rule of lenity is that of fairness to the accused:
Although it is not likely that a criminal will carefully
consider the text of the law before he murders or steals,
it is reasonable that a fair warning should be given to
the world in language that the common world will
understand, of what the law intends to do if a certain
line is passed. To make the warning fair, so far as
possible the line should be clear.71
The rule of lenity should not be applied haphazardly, however,
but should be reserved “for those situations in which a reasonable
doubt persists about a statute’s intended scope even after resort
to ‘the language and structure, legislative history, and motivating
policies’ of the statute.”72 Consequently, we will resort to the
rule of lenity only “if the text of a statute is opaque or
ambiguous.”73 “The rule-of-lenity is a rule of statutory
construction,” and should be employed only after other canons of
construction have proven unsatisfactory in pursuit of a criminal
statute’s meaning.74
After conscientiously applying our circuit’s rules of
statutory construction, we cannot say with certainty that Congress
intended to criminalize the possession of firearms by aliens who
71
McBoyle v. United States, 283 U.S. 25, 27 (1931) (Holmes, J.).
72
Moskal v. United States, 498 U.S. 103, 108 (1990) (quoting Bifulco v.
United States, 447 U.S. 381, 387 (1980)); see also United States v. Reedy, 304
F.3d 358, 368 n.13 (5th Cir. 2002) (“Despite its status as a tool of last resort,
[the rule of lenity] has a long and established history in the Supreme Court and
this circuit. Where, after seizing everything from which aid can be derived, the
statute remains ambiguous, the rule of lenity may be applied.”).
73
Administaff Cos. v. N.Y. Joint Bd., Shirt & Leisurewear Div., 337 F.3d
454, 457 (5th Cir. 2003).
74
United States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001).
22
have been granted temporary protected status. It may be sound
policy, but as such its wisdom has no call upon the judicial power.
When Congress does unambiguously render conduct illegal through
appropriate legislation, it is not our task to offer supplementary
and clarifying amendments.
IV
For the foregoing reasons, we REVERSE the judgment of the
district court and REMAND with instructions to dismiss Orellana’s
indictment.
23