United States Court of Appeals

Fifth Circuit



## FILED

October 12, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 nexu s 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 State s 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 deportat io n1 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 proceedings could not be initiated. On this basis, t he district court found that Lucio could not be

charged with being il l egally 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)

a djudicat io n o f his application. We are constrained to hold that in light of recent precedent, if an

alien’s immigration status remains unlawful during the pendency o f an application to adjust that

status, the mere fact that h e has received permission to work in the country, and may not be

deported, does not alter the init ial 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 Cucarach a” 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 t hat 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 new2 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 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 sta t us, 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. S ee 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, t he necessary

predicate to be charged under § 922(g)(5)(A) was absent as he was not “illegally or unlawfully”

present in the United States.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 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 cou ld st ill 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 pursuan t to F E D

. R. C RIM

. P. 29, the determination is not entitled to

exceeding deference by this court. U nited States v. Loe

, 262 F.3d 427, 432 (5th Cir. 2001). Rather,5

this court must review the decision de novo

, employing the identical standard as did the district court.

Id. Under a d e 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 th at despit e t he fact that Lucio had filed an

application to adjust his immigration status to that of a lawful permanent resident–which tolled the

INS’s abilit

y to deport him, and provided employment authorization until his ap plication 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 sch eme. Our initial challenge

therefore is to determine whether an alien who has filed an application for adjustment of status–which

has not yet been

act ed 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 ent ered 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 termed6

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. S ee 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. S ee 8

U .S.C. § 1255a(a)(1). Testimony was presented at trial which suggested that his applicat io n 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 wi thin Uni ted 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, whic h occurred in the late 1980's, related to the INS’s

implementation of IRCA’s amnesty provisions. S ee Catholic Social Services, Inc. v. Meese

, vacated

s ub nom

. Reno v. Catholic Social Services, Inc.

, 509 U.S. 43 (1993); League of United Latin

American Citizens v. INS

, vacated sub nom

. R eno v. Catholic Social Services, Inc.

, 509 U.S. 43

(1993); and Zambrano v. INS

, 509 U.S. 918 (19 93). 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-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 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 app l icant had traveled

o ut side t he United States in contravention of INS guidelines. S ee

, 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 assi st the INS to m ake 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 t he

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 file d 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, 2001,5 The record further indicates that Lucio’s attorney did not formally submit a completed

Application for Legalization Packet until February 20, 2002.

8 which permitted him to work whi le his application for adjustment of status was pending. 5

Consequently, Lucio avers tha t , 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 Sta tes v. Fl ores , 404 F.3d 320 (5th Cir. 2005), this court considered, i nter 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 t he TPS applicant was provided with “employment

authorization” to continue working in t he country. I d. 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 appl ication

process, it necessarily followed that his presence in the United States was not unlawful. Id. at 323.6 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 The Flores court found his cont ent io n 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. I d. 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.’” I d. at 327 (quoting Hussein v. INS

,

61 F.3d 377, 381 (5th Cir. 1995)).

In Unit ed States v. Orel l ana , 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 i n the Uni ted States for the

purposes of the statute. I d. at 362. In O rellana

, we observed that an alien who had been granted TPS10

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). I d. 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 io n fo r 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 deportati on 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 immi grati on

status has change d, as t he very real possibility exists that the INS will deny t he 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 o n t he date7 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 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. I n

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 §

92 2(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, wa s 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 abilit y to engage in employment

during the pendency of h is case . . . t he employment authorization did not have the effect of8 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 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.