United States v. Orellana

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temporary protected status is withdrawn.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).

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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.

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