United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 12, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-20331
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
GILBERTO RUBIO LUCIO,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before DAVIS, STEWART, and DENNIS, Circuit Judges.
CARL E. STEWART, Circuit Judge:
The difficult question presented in this matter lies at the nexus bet ween criminal and
immigration law. The United States appeals from the district court’s grant of a judgment of acquittal
following a jury’s verdict which had found Gilberto Rubio Lucio (“Lucio”) guilty of possession of
a firearm while illegally or unlawfully present within the United States pursuant to18 U.S.C. §
922(g)(5)(A). Lucio, an alien, had previously entered the country without authorization. He filed an
application to adjust his immigration status to that of a lawful permanent resident. During the
pendency of his application, he was authorized to work in the United States and deportation
proceedings could not be initiated. On this basis, the district court found that Lucio could not be
charged with being illegally or unlawfully present within the United States given that he was
“authorized” to remain in the county until the Immigration and Naturalization Service’s (INS)
adjudicat ion of his application. We are constrained to hold that in light of recent precedent, if an
alien’s immigration status remains unlawful during the pendency of an application to adjust that
status, the mere fact that he has received permission to work in the country, and may not be
deported, does not alter the initial unlawfulness of his immigration status. Consequently, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In 2001, federal law enforcement officials began investigating security companies that had
been employing illegal aliens as armed security guards for local Houston, Texas area businesses. On
June 8, 2003, this investigation led the Bureau of Alcohol, Tobacco, and Firearms (ATF), along with
other area law enforcement agencies to the “La Cucaracha” nightclub in Houston, where they
encountered Lucio who was working as a security guard. Though Lucio did not have a firearm on
his person when law enforcement personnel arrived at the nightclub, they learned that Lucio had
discarded his weapon shortly before law enforcement’s arrival. A subsequent consensual search of
his vehicle recovered a loaded .38 caliber revolver.
Lucio was charged pursuant to § 922(g)(5)(A). The indictment provided that Lucio had
illegally possessed the firearm on February 1, 2002.1 He pled not guilty; a jury trial was held, and
on December 3, 2003, a verdict of guilty was rendered. On January 9, 2004, Lucio moved for a
judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, or in the alternative, a new
1
During the trial it was learned that the weapon had been purchased by the roommate of
Lucio on February 28, 1997, who then provided it to Lucio.
2
trial pursuant Federal Rule of Criminal Procedure 33. The basis for Lucio’s motion was that because
he had filed an application for adjustment of his immigration status, which was still pending at the
time that he was charged with violating § 922(g)(5)(A), he could have been deemed to be illegally
within the United States because he was lawfully permitted to remain in the country during the
pendency of the application.2 Significantly, among the privileges afforded to an individual who has
applied for adjustment of status is that he is allowed to remain in the country while his application is
pending. See Legal Immigration and Family Equity Act, Pub. L. No. 106-554, 114 Stat. 2763, Sec.
1104 (2000) (LIFE Act); see also 8 U.S.C. § 1255a(e). Consequently, he argued, the necessary
predicate to be charged under § 922(g)(5)(A) was absent as he was not “illegally or unlawfully”
present in the United States.
2
In 1986, Congress enacted the Immigration Reform and Control Act (IRCA), which was
intended to serve as an amnesty program, providing the opportunity for citizenship for aliens who
had unlawfully lived in the United States continuously since prior to January 1, 1982. See 8
U.S.C. § 1255a(a)(2). The alien was required to have had continuous physical presence in the
United States from the date that the IRCA was enacted–November 6, 1986. § 1255a(a)(3). The
alien had to be admissible as an immigrant. § 1255a(a)(4). Moreover, in order to benefit from the
amnesty statute, the alien was required to file an application for adjustment of status between May
5, 1987 and May 4, 1988. § 1255a(a)(1). Until a final determination is made as to the application
for adjustment of status, the alien was permitted to work in the United States and deportation
proceedings were temporarily stayed. § 1255a(e). Of note, the alien’s temporary residence
status could be revoked if, inter alia, he committed a felony. § 1255a(b)(2)(B).
On December 21, 2000, the Legal Immigration and Family Equity (LIFE) Act, Pub.L. No.
106-553, 114 Stat. 2762 and the LIFE Act Amendments, Pub. L. 106-554, 114 Stat. 2763
(enacting H.R. 5666, 106th Cong.) were enacted. The LIFE Act, amended provisions of the
IRCA, but similarly provides that an eligible alien, who has filed an application for adjustment of
status is not permitted to be deported or removed from the country while the application is still
pending. See 8 C.F.R. § 245a.13(a)(1). Moreover, while the application is pending the statute
provides that the alien shall be afforded the opportunity to work in the United States. Id. at §
245a.13(a)(2).
3
The district court found Lucio’s argument to be availing and granted his motion for judgment
of acquittal on March 10, 2004.3 The United States timely appealed, arguing that irrespective of the
pendency of Lucio’s application for adjustment of status, he could still be charged under §
922(g)(5)(A).
STANDARD OF REVIEW
“A motion for judgment of acquittal challenges the sufficiency of the evidence to convict.”
United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998). When a district court grants a motion
for judgment of acquittal pursuant to FED. R. CRIM. P. 29, the determination is not entitled to
exceeding deference by this court. United States v. Loe, 262 F.3d 427, 432 (5th Cir. 2001). Rather,
3
The district court’s determination turned on the interplay between the LIFE Act,
Pub.L.No. 106-553, which amended portions of the IRCA, 8 U.S.C. § 1255a et seq., and
language from our opinion in United States v. Igbatayo, 764 F.2d 1039 (5th Cir. 1985) (per
curiam), addressing the legality of an alien’s presence in the country. In Igbatayo, 764 F.2d 1039
(5th Cir. 1985), an alien who had entered the United States via a student non-immigrant visa was
charged under § 922(g)(6), which prohibits an individual from making a material fictitious
statement to a firearm dealer in connection with the purchase of a firearm. A condition of his
visa–and which permitted him to lawfully reside in the United States–required that he remain in
school. The alien chose to discontinue his education following receipt of his master’s degree in
1982. In 1984, he sought to purchase a firearm. When questioned by a firearm dealer as to
whether he was lawfully present in the United States, he answered in the affirmative. This answer
of course was false because once he stopped pursuing his education, under the terms of his visa,
he was no longer lawfully present within the United States. We held that one is illegally present
within the United States if they are “without authorization” to remain in the country. Id. at 1040.
Similarly, in United States v. Brissett, 720 F.Supp. 90 (S.D.Tex. 1989), a district court in
this circuit issued an opinion which held that an alien who was charged under § 922(g)(5)(A), but
had previously filed an application for adjustment to permanent residence status, could not be held
to be unlawfully within the United States. The court in Brissett recognized that an alien who had
an application pending was permitted to seek employment authorization, and, consistent with the
operating instructions promulgated by the INS, deportation proceedings could not be initiated.
Id. at 91. The Brissett decision has not been revisited by the Fifth Circuit. See United States v.
Flores, 404 F.3d 320, 327 n.11 (“Thus, we need not, and do not, decide whether the district court
in Brissett reached the correct conclusion.”).
4
this court must review the decision de novo, employing the identical standard as did the district court.
Id. Under a de novo standard of review, this panel must assess whether a reasonable jury could have
properly concluded, weighing the evidence in a light most deferential to the verdict rendered by the
jury, that all of the elements of the crime charged had been proven beyond a reasonable doubt. Id.
We are not required to analyze the evidence with an eye toward negating every possible inference
of innocence, rather, if the fact finder was presented with sufficient evidence to support the verdict
reached, that verdict must be upheld. Id.
DISCUSSION
The crux of the government’s argument is that despite the fact that Lucio had filed an
application to adjust his immigration status to that of a lawful permanent resident–which tolled the
INS’s ability to deport him, and provided employment authorization until his application was
adjudicated–the pendency of the application did not proscribe Lucio from being charged pursuant to
§ 922(g)(5)(A). Lucio counters by arguing that the district court’s grant of the judgment of acquittal
was consistent with the basic intent of the LIFE Act’s regulatory scheme. Our initial challenge
therefore is to determine whether an alien who has filed an application for adjustment of status–which
has not yet been acted upon by the INS–is nevertheless lawfully within the United States for the
purposes of § 922(g)(5)(A).
A.
It is uncontroverted that Lucio illegally entered into the United States in 1981. In 1986,
Congress enacted the Immigration Reform and Control Act (IRCA) in an effort to formally legalize
aliens who had illegally entered into the United States prior to January 1, 1982. See 8 U.S.C. 1255a
et seq. Under IRCA’s terms, the alien had to meet a series of requirements before he could be termed
5
a “lawful permanent resident.” See supra, note 2. First, the alien had to file an application for lawful
temporary residence, which had to be granted by the INS. See 8 U.S.C. § 1255a(a). Thereafter, only
then could the alien have his status adjusted to lawful permanent residence. Id. at § 1255a(b).
Pursuant to IRCA’s amnesty provisions, Lucio filed an application to adjust his immigration
status within the one year window articulated by the statute–May 5, 1987 and May 4, 1988. See 8
U.S.C. § 1255a(a)(1). Testimony was presented at trial which suggested that his application was
rejected by the INS on the basis that the agency had concerns about the fact that Lucio had frequently
left the United States in the period of time preceding the filing of his application. Despite the fact that
his application was not acted upon, Lucio continued to live and work within United States for a
number of years even though, technically, he was unlawfully present in the country given that: (1) he
had unlawfully entered the United States, (2) his alien status had not been adjusted, and (3) his IRCA
amnesty application had never been ruled upon.
Thereafter, sometime between 1999 and 2000 he apparently filed an application pursuant to
the INS’s Legalization Questionnaire Program. It is helpful to note that several class action lawsuits
were initiated stemming from problems, which occurred in the late 1980's, related to the INS’s
implementation of IRCA’s amnesty provisions. See Catholic Social Services, Inc. v. Meese, vacated
sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993); League of United Latin
American Citizens v. INS, vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43
(1993); and Zambrano v. INS, 509 U.S. 918 (1993). As a result, aliens who filed nonfrivolous
amnesty applications in accordance with IRCA, often had their applications improperly denied.
In an effort to remedy these problems, the INS allowed aliens living in the United States in
an unlawful status to file legalization questionnaires to determine whether they had been “front-
6
desked” by the INS. The phrase “front- desked” is a term of art describing instances where the INS
had denied an alien’s IRCA legalization application on the grounds that the applicant had traveled
outside the United States in contravention of INS guidelines. See, e.g., Carlos Holguin, Peter A.
Schey and Charles Song, Handling “Late” Amnesty Cases: Practice and Procedure Under the INS’s
Legalization Questionnaire Program, 77 No. 34 Interpreters Releases 1269, 1271 (Sept. 1, 2000).
Recognizing that countless aliens seeking amnesty under IRCA had their applications denied on very
questionable grounds, the legalization questionnaire was intended to assist the INS to make a
determination as to whether it had erroneously “front-desked” an alien during IRCA’s amnesty
period–May 5, 1987 through May 4, 1988. If the legalization questionnaire was approved by the
INS, this would allow the alien to file a legalization application and, thereafter, the INS would issue
the alien t emporary employment authorization and a stay of deportation until the application was
adjudicated. Id. at 1275; see also 8 C.F.R. § 245a.4(b)(14).
On September 12, 2000, Lucio was informed by the INS that his legalization questionnaire
had been reviewed by the INS. The INS stated that Lucio had established that he had previously
been “front-desked” by the INS when he filed his applicat ion for amnesty under IRCA during the
statute’s amnesty period. In the letter the INS also informed Lucio that he needed to submit, inter
alia, a Form I-687 application (which would permit for lawful temporary status), and a Form I-765
(which would authorize employment).4 He received employment authorization on March 14, 2001,
4
According to the record, the INS considered Lucio to have applied for LIFE
Legalization on September 12, 2000. Submitting an application for LIFE Legalization simply
“allows certain eligible aliens to apply for adjustment of status to that of a lawful permanent
resident (LPR) under a modified version of [IRCA].” INS Implements LIFE Act’s Legalization,
Family Unit Provisions, 78 No. 22 Interpreter Releases 914, 915 (June 4, 2001) (emphasis
added).
7
which permitted him to work while his application for adjustment of status was pending.5
Consequently, Lucio avers that, because he had been granted employment authorization and was
permitted to remain in the United States during the pendency of his application to adjust his
immigration status, he could not be charged with being illegally or unlawfully within the United States
on February 1, 2002.
We believe that Lucio’s argument, while well-taken, nevertheless misconstrues his
immigration status, and erroneously assumes that an alien who has filed an application to adjust his
status cannot be charged under § 922(g)(5)(A). While this court has never squarely addressed the
claims at issue in this case, our decision today is guided by decisions rendered by this court in similar
contexts.
B.
In United States v. Flores, 404 F.3d 320 (5th Cir. 2005), this court considered, inter alia,
whether an alien who had applied for Temporary Protective Status (TPS) pursuant to 8 U.S.C. §
1254a, and had been charged under § 922(g)(5)(A), could be deemed to be “illegally or unlawfully”
in the United States given that during the pendency of the application for TPS, the United States was
prohibited from deporting the alien, and the TPS applicant was provided with “employment
authorization” to continue working in the country. Id. at 322; see also 8 U.S.C. § 1254a(a)(1).
Flores had argued that, because he could not permissibly be deported during the TPS application
process, it necessarily followed that his presence in the United States was not unlawful. Id. at 323.
5
The record further indicates that Lucio’s attorney did not formally submit a completed
Application for Legalization Packet until February 20, 2002.
8
The Flores court found his contention meritless, and deferred to 27 C.F.R. § 478.11, the
administrative regulation promulgated by the ATF interpreting § 922(g)(5)(A).6 We recognized that
the dispositive issue before us was defining the phrase “illegally or unlawfully in the United States”
as used by § 922(g)(5)(A); and of equal importance was determining whether Flores’ TPS application
insulated him from § 922(g)(5)(A)’s ambit. Id. at 326. The panel found that Flores could properly
be charged under § 922(g)(5)(A) because: (1) he had initially entered into the United States without
prior inspection, and (2) since that time he had “not been paroled into the United States under section
212(d)(5) of the [INA].” Id. at 327 (quoting 27 C.F.R. § 478.11). Consequently, Flores could still
be “considered ‘illegally and unlawfully in the United States.’” Id. at 327 (quoting Hussein v. INS,
61 F.3d 377, 381 (5th Cir. 1995)).
In United States v. Orellana, 405 F.3d 360 (5th Cir. 2005), a panel of this court similarly
considered the question of whether an alien who had been granted TPS and had subsequently been
charged under § 922(g)(5)(A), was illegally and unlawfully present in the United States for the
purposes of the statute. Id. at 362. In Orellana, we observed that an alien who had been granted TPS
6
27 C.F.R. § 478.11 provides that an alien is “illegally or unlawfully” in the United States
is one:
(a) Who 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 Naturalization Act (INA);
(b) Who is a nonimmigrant and whose authorized period of stay has expired or
who has violated the terms of the nonimmigrant category in which he or she was
admitted;
(c) Paroled under INA section 212(d)(5) whose authorized period of parole has
expired or whose parole status has been terminated; or
(d) Under an order of deportation, exclusion, or removal, or under an order to
depart the United States voluntarily, whether or not he or she has left the United
States.
9
was conferred significant benefits that were not similarly accorded an alien who had merely applied
for TPS. For example, upon being granted TPS, the alien was considered to have lawful immigration
status within the United States. Therefore, we found that Orellana was lawfully within the country
and could not be charged under § 922(g)(5)(A). Id. at 366; see also 8 U.S.C. § 1254a(f)(4)
(recognizing that an alien granted TPS is “considered as being in, and maintaining, lawful status as
a nonimmigrant”). We further commented that the most significant difference between Flores and
Orellana cases was that “an alien in receipt of TPS is in lawful status [according to the Immigration
and Naturalization Act], whereas an alien who has merely been extended temporary benefits awaiting
the disposition of his applicat ion for lawful status may (and often is) in an unlawful immigration
status.” Id. Thus, for § 922(g)(5)(A) purposes, we found that an alien (Orellana) who had been
granted valid immigration valid status was permissibly within the United States, whereas the same
could not be said for an alien (Flores) who was merely provided with employment authorization, and
was prohibited from being deported while awaiting a ruling on his application for TPS. Id.
We conclude that Flores ultimately informs our holding. Nothing in the record compels a
finding that on February 1, 2002–the date referenced in Lucio’s indictment–the lawfulness (or rather,
unlawfulness) of his immigration status was transformed because he had been accorded employment
authorization and deportation proceedings were stayed pending the INS’s ruling on his application.
We conclude that the submission of an application does not connote that the alien’s immigration
status has changed, as t he very real possibility exists that the INS will deny the alien’s application
altogether. Therefore, we are persuaded that the best that can be said about Lucio’s unlawful
immigration status is that it was in stasis, pending the INS’s ruling on his application. Futher,
other courts have also recognized that where an alien lacks lawful immigration status on the date
10
charged in his indictment, he was not considered to be lawfully within the United States and,
therefore, bringing a charge against the alien pursuant to § 922(g)(5)(A) was entirely cognizable. In
United States v. Atandi, 376 F.3d 1186 (10th Cir. 2004) an alien who had been granted a student
visa, failed to abide by the conditions of his visa, and was subsequently found to be deportable by an
Immigration Judge (IJ). Two months later, he possessed a firearm and was charged under §
922(g)(5)(A). He argued that because removal proceedings were still ongoing before the IJ, his
presence in the United States could not be said to be unlawful. The Tenth Circuit, however, held that
once the alien had committed a status violation, i.e., failing to maintain his student status–which was
a prerequisite for his lawfully remaining in country–he could be charged under § 922(g)(5)(A). 376
F.3d at 1188.7
Moreover, in United States v. Bazargan, 992 F.2d 844 (8th Cir. 1993), an alien whose student
visa expired subsequent to his possessing a firearm, was charged under § 922(g)(5)(A). He
nevertheless averred that he was not illegally or unlawfully in the United States because he had been
provided employment authorization pending a ruling on his amnesty application. The panel strongly
disagreed, observing that “[b]ecause the INS does not interpret the employment authorization to have
any effect on the alien’s status with respect to anything other than his ability to engage in employment
during the pendency of his case . . . t he employment authorization did not have the effect of
7
Somewhat notably, the panel in Atandi also expressed strong reservations about whether
an alien authorized to work in the United States during the pendency of his amnesty application,
was lawfully within the United States for under § 922(g)(5)(A) purposes. 376 F.3d at 1192 n.12.
But see United States v. Bravo-Muzquiz, -- F.3d -- , 2005 WL 1404573, at *3 (9th Cir. June 16,
2005) (agreeing with Atandi’s holding, but implying in dicta that if an alien had filed an
application for adjustment of status prior to possessing a firearm, he likely could not be charged
under § 922(g)(5)(A)).
11
converting Bazargan back into a legal alien.” Id. at 849. We believe the foregoing observation in
Bazargan accords with the reasoning employed by this court in Flores, supra.
CONCLUSION
Accordingly, on February 1, 2002, Lucio was still deemed to be unlawfully within the United
States irrespective of the fact that he had received employment authorization. Further, because in
the interim between the INS’s adjudication of his application, his unlawful immigration status remains
undisturbed, we hold that Lucio could permissibly be charged under § 922(g)(5)(A).8 Accordingly,
we reverse.
REVERSED AND REMANDED.
8
We note that under § 922(g)(5)(B), an alien granted a nonimmigrant visa, with certain
exceptions, is not permitted to carry a firearm. Thus, we think it would fashion a peculiar result if
we were to hold that an alien unlawfully within the United States who has simply submitted an
application to adjust his status may permissibly possess a firearm, whereas an alien granted a
nonimmigrant visa–and concomitantly, temporary lawful immigration status–may not. We do not
believe such reasoning is tenable. Therefore, our holding today harmonizes § 922(g)(5)(A) and §
922(g)(5)(B), and thereby accords with the underlying intentions of both statutes. See Airline
Pilots Assoc. Int’l. v. Taca Int’l Airlines, S.A., 748 F.2d 965, 969 (5th Cir. 1984) (“It is
axiomatic that statutes . . . are to be interpreted, to the maximum extent possible, so as to be
consistent and harmonious.”) (emphasis added).
12