FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-50102 Plaintiff-Appellee,

D.C. No.

v.  CR-04-01396-NAJ

ANTONIO LOPEZ-PERERA,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Napoleon A. Jones, District Judge, Presiding

Argued and Submitted

January 12, 2006—Pasadena, California

Filed February 21, 2006

Before: Mary M. Schroeder, Chief Judge,

Alfred T. Goodwin and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Goodwin

1815
COUNSEL

Jeremy D. Warren, San Diego, California, for the defendantappellant. 

Anne Kristina Perry, Assistant United States Attorney, San

Diego, California, for the plaintiff-appellee.

UNITED STATES v. LOPEZ-PERERA 1817
OPINION

GOODWIN, Circuit Judge: 

Antonio Lopez-Perera appeals his conviction of violating

18 U.S.C § 922(g)(5)(A), (being an alien illegally or unlawfully in the United States in possession of a firearm). He

assigns error to the denial of his Federal Rule of Criminal

Procedure 29 motion seeking a judgment of acquittal.

Because the district court misinterpreted the meaning of the

statute, it erred in denying the motion. 

I. Background

On May 9, 2004, Lopez-Perera, a citizen of Mexico, drove

his van, with no passengers, from Mexico into the San Ysidro

Port of Entry in California. When first asked by an officer at

the border, Lopez-Perera falsely stated that he was a United

States citizen. Lopez-Perera then offered a California security

guard identification card as proof of his citizenship. 

The officer did not accept the proffered card as proof of citizenship and directed Lopez-Perera towards secondary inspection. Lopez-Perera waited approximately twenty-five minutes

in the secondary inspection area and then drove his van

toward the north exit of the San Ysidro Port of Entry. Border

officers noticed Lopez-Perera’s movements and stopped him

before he could leave the area. 

After stopping the van, the officers arrested and searched

Lopez-Perera. The search uncovered the California security

guard identification card and a permit to carry an exposed

firearm. The permit to carry an exposed firearm prompted the

officers to search the van. The search revealed the presence

of a .38 caliber Taurus Revolver. 

Lopez-Perera was held at the port of entry and questioned

by an Immigration and Customs Enforcement special agent.

1818 UNITED STATES v. LOPEZ-PERERA
After providing Lopez-Perera with a Miranda warning and

receiving a signed waiver, the special agent learned that

Lopez-Perera was a citizen of Mexico and that the pistol

recovered in the van was Lopez-Perera’s. 

On May 19, 2004, Lopez-Perera was indicted for violating

18 U.S.C. § 911 (making a false claim of United States citizenship) and 18 U.S.C. § 922(g)(5)(A) (possession of a firearm by an alien illegally or unlawfully in the United States).

On October 26, 2004, Lopez-Perera was tried on both counts

in a bench trial. Lopez-Perera put on no affirmative evidence,

conceded the false claim to citizenship charge, and moved for

a judgment of acquittal with respect to the firearm charge. As

noted, the court denied the motion and found Lopez-Perera

guilty on both counts. 

Lopez-Perera was sentenced to thirteen months imprisonment for each count followed by a year of supervised release

on the false claim of citizenship charge and three years of

supervised release on the firearm charge. The terms of imprisonment for each count were to run concurrently as were both

terms of supervised release. 

II. Analysis 

This appeal requires us to construe 18 U.S.C. § 922(g)

(5)(A) and 27 C.F.R. § 478.11. Lopez-Perera argues that the

drafters intended to use immigration terms of art when they

denounced the possession of a firearm by a person “illegally

or unlawfully in the United States.” The district court disagreed and held that, by his physical presence in the port of

entry, Lopez-Perera satisfied the element of the crime of

being illegally or unlawfully in the United States. We hold

that the law is contrary to the district court’s ruling. 

“To determine the plain meaning . . . of a statute, we must

examine not only the specific provision[s] at issue, but also

the structure of the law as a whole including its object and

UNITED STATES v. LOPEZ-PERERA 1819
policy.” Almero v. INS, 18 F.3d 757, 760 (9th Cir. 1994). If

a statute is silent regarding an issue, we will defer to the interpretation of the administrative agency charged with implementing the statute. Id. at 763. 

[1] Here, 18 U.S.C. § 922(g)(5) reads: 

(g) It shall be unlawful for any person — . . . 

(5) who, being an alien— 

(A) is illegally or unlawfully in the

United States; or 

(B) except as provided in subsection

(y)(2), has been admitted to the United

States under a nonimmigrant visa (as that

term is defined in section 101(a)(26) of

the Immigration and Nationality Act (8

U.S.C. § 1101(a)(26))); . . . 

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or

ammunition which has been shipped or transported

in interstate or foreign commerce. 

18 U.S.C. § 922(g)(5) (emphasis added). The portion of the

statute at issue in this case is the term “illegally or unlawfully

in the United States.” The statute provides no definition of

what constitutes illegal or unlawful presence in the United

States. 

[2] The legislative history is similarly silent. No comments

concerning the meaning of “illegally or unlawfully in the

United States” appear in the 1968 legislative history. See, e.g.,

114 CONG. REC. S13867-69 (daily ed. May 17, 1968). There

are also no comments regarding the term in the 1986 legisla1820 UNITED STATES v. LOPEZ-PERERA
tive history, when the statute was amended to include the

most recent language for § 922(g)(5)(A). See, e.g., 132 CONG.

REC. S9556-60 (daily ed. May 6, 1986); 132 CONG. REC.

H7075-92 (daily ed. April 10, 1986); 131 CONG. REC. S18155-

18237 (daily ed. July 9, 1985). 

When Senator Durbin introduced his 1998 amendment to

the statute, his comments focused on his concern about foreign tourists purchasing firearms in the United States, not

about aliens sneaking firearms into the country. See 144

CONG. REC. S8641 (daily ed. July 21, 1998) (statement of Sen.

Durbin) (“I think, frankly, we ought to say that if you come

into this country as our guest, not as a citizen of the United

States, that we are going to restrict your right to purchase a

firearm.”). Senator Durbin did not offer a definition of the

words used in the amended statute. See id. at S8639-42. 

[3] The Bureau of Alcohol, Tobacco, and Firearms

(“BATF”), however, as the agency charged with administering § 922, has promulgated a regulation including a definition

for “Alien illegally or unlawfully in the United States.” 27

C.F.R. § 478.11. The relevant portion of the BATF’s definition provides: 

Aliens who are unlawfully in the United States are

not in valid immigrant, nonimmigrant or parole status. The term includes any alien — 

(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 Nationality Act (INA). 

27 C.F.R. § 478.11 (emphasis added). The BATF’s definition

requires analysis because it fills a gap left by Congress in

enacting § 922(g)(5)(A). See Chevron, Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 843-44 (1984). 

UNITED STATES v. LOPEZ-PERERA 1821
In 1996, the BATF published a notice in the Federal Register that it was planning to amend the regulation to include definitions for the categories of persons prohibited from owning

firearms. Definitions for the Categories of Persons Prohibited

From Receiving Firearms, 62 Fed. Reg. 34,634, 34,635 (June

27, 1997) (to be codified at 27 C.F.R. § 478.11). During the

requisite public comment process, the Immigration and Naturalization Service (“INS”) submitted comments to the BATF

regarding the immigration-related definitions. Id. In making

the comments, the INS pointed out that “the INA uses specific

legal terms to refer to the status of aliens in the United

States.” Id. at 34,637 (emphasis added). 

[4] The BATF considered the INS’ suggestions and stated

that it “agrees with the INS that the wording of the definition

for [aliens illegally and unlawfully in the United States]

should reflect the terminology used in the Immigration and

Nationality Act. Accordingly, [B]ATF is adopting INS’ proposed definition into the final regulations.” Id. These BATF

statements in the Federal Register make clear that the language in 27 C.F.R. § 478.11 must be construed in light of

immigration law. 

[5] But, the analysis cannot end here because the definition

that the INS recommended, and the BATF adopted, does not

define the term “entered.” In the context of immigration law,

however, “enter” is “a specific legal term.” Entering the

United States “requires: ‘(1) a crossing into the territorial limits of the United States, i.e., physical presence; (2)(a) inspection and admission by an immigration officer, or (b) actual

and intentional evasion of the inspection at the nearest inspection point; and (3) freedom from official restraint.’ ” Sidhu v.

Ashcroft, 368 F.3d 1160, 1163-64 (9th Cir. 2004) (quoting

Matter of Patel, 20 I. & N. Dec. 368, 370 (1991)). 

[6] Here, Lopez-Perera satisfied the first entry requirement

because he crossed into the United States from Mexico; the

San Ysidro Port of Entry is in the United States. Just as in

1822 UNITED STATES v. LOPEZ-PERERA
Sidhu, it is arguable whether Lopez-Perera satisfied the second entry requirement because he was considered by an officer at primary inspection and forwarded on to secondary

inspection. The inspection point is moot, however, because

Lopez-Perera was never free from official restraint and, therefore, never entered the United States. See Id. at 1164

(“Because Sidhu never exited secondary inspection, she was

not free from official restraint.”). “Aliens who proceed

directly as instructed by signs or otherwise to the customs

facility . . . are not sneaking into the United States. Instead

they are presenting themselves to American officials in the

manner designated by the United States government.” United

States v. Zavala-Mendez, 411 F.3d 1116, 1120 (9th Cir. 2005)

(confirming the well established proposition that a person is

not “in” the United States until he is not only physically present on the United States side of the border, but also enjoys

“freedom from official restraint.”), see also United States v.

Lombera-Valdovinos, 429 F.3d 927, 929 (9th Cir. 2005)

(explaining that “an alien who is on United States soil, but

who is deprived of [his] liberty and prevented from going at

large within the United States, remains under official restraint

and therefore has not entered the country”) (internal citations

omitted). 

We are confronted with two questions when analyzing an

administering agency’s construction of a statute. Chevron,

467 U.S. at 842. The first question is “whether Congress has

directly spoken to the precise question at issue.” Id. If it has,

both courts and agencies are bound by Congress’ clear meaning. Id. at 842-43. If Congress has not spoken clearly and an

agency has promulgated a regulation, however, we cannot

simply impose our own construction of the statute as we could

in the absence of a regulation. Id. at 843. “Rather, if the statute is silent or ambiguous with respect to the specific issue,

the [second] question for the court is whether the agency’s

answer is based on a permissible construction of the statute.”

Id. Deference is granted to the agency’s administrative interpretations 

UNITED STATES v. LOPEZ-PERERA 1823
whenever decision as to the meaning or reach of a

statute has involved reconciling conflicting policies,

and a full understanding of the force of the statutory

policy in the given situation has depended upon

more than ordinary knowledge respecting the matters

subjected to agency regulations. If this choice represents a reasonable accommodation of conflicting

policies that were committed to the agency’s care by

the statute, we should not disturb it unless it appears

from the statute or its legislative history that the

accommodation is not one that Congress would have

sanctioned. 

Id. at 844-45 (citations and internal quotations omitted). 

[7] Considering the confluence of immigration law and

criminal law inherent in § 922(g)(5)(A), it cannot be said that

the BATF’s decision to utilize immigration-specific terms is

an impermissible construction of the statute. See id. at 866

(“[F]ederal judges — who have no constituency — have a

duty to respect legitimate policy choices made by those who

do. The responsibilities for assessing the wisdom of . . . policy

choices and resolving the struggle between competing . . .

public interest[s] are not judicial ones: ‘Our Constitution vests

such responsibilities in the political branches.’ ” (quoting TVA

v. Hill, 437 U.S. 153, 195 (1978))). Furthermore, no part of

§ 922(g)(5)(A)’s legislative history indicates that the decision

to use immigration law definitions is one that Congress would

not sanction. 

In its brief and in response to questions at oral argument,

the government argued that the “official restraint” doctrine is

limited to illegal re-entry cases under 8 U.S.C. § 1326. The

cases cited by the government to support this argument, however, highlight Congress’ detailed understanding of the difference between the terms “come to the United States” and “in

the United States.” United States v. Hernandez-Garcia, 284

F.3d 1135, 1137-39 (9th Cir. 2002) (recognizing a distinction

1824 UNITED STATES v. LOPEZ-PERERA
between “coming to” and “entering” the United States);

United States v. Gonzalez-Torres, 309 F.3d 594, 599 (9th Cir.

2002) (“Deliberately overruling case law requiring entry to

sustain a smuggling conviction, Congress replaced the words

‘brings into’ with the words ‘brings to.’ ”). Indeed, in revising

8 U.S.C. § 1324 to no longer require an alien’s “entry” to sustain a smuggling conviction, Congress has shown that it

understands the distinction between “coming to” the United

States (which does not require entry) and coming “into” or

being “in” the United States (which requires both physical

presence and freedom from official restraint). See, e.g.,

United States v. Munoz, 412 F.3d 1043, 1048-49 (9th Cir.

2005) (holding that an alien being smuggled to the United

States “comes to” the United States under 8 U.S.C.

§ 1324(a)(2)(B) when he crosses the border whether or not he

or she is under official restraint). 

[8] Section 922(g)(5)(A) does not criminalize the possession of a firearm by an alien who “comes to the United

States” or “brings a firearm to the United States,” but instead

criminalizes the possession of a firearm by an alien who is “illegally or unlawfully in the United States.” Therefore,

because Lopez-Perera had not entered the United States, he

could not have been “illegally or unlawfully in the United

States.” 

III. Conclusion

[9] It is clear that Lopez-Perera did not, at the time and

place charged, enter the United States. Because he had not yet

entered the United States, he could not have been “illegally or

unlawfully in the United States.” Congress has made clear

that it understands the distinction between the terms “coming

to” and “bringing to” the United States and the term “in the

United States” and has chosen to use the latter in

§ 922(g)(5)(A). The district court erred in construing

§ 922(g)(5)(A) outside the context of immigration law and

should have granted Lopez-Perera’s Rule 29 motion. We

UNITED STATES v. LOPEZ-PERERA 1825
therefore REVERSE the conviction on the § 922(g)(5)(A)

count, and remand the case for a revised sentence. 

1826 UNITED STATES v. LOPEZ-PERERA