United States District Court, D. Oregon
J. Williams, United States Attorney, and Gregory R. Nyhus and
Sarah K. Barr, Assistant United States Attorneys, United
States Attorney's Office, Attorneys for the United
Huseby, Assistant Federal Public Defender, Office of the
Federal Public Defender, Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge.
criminal case, the Court must decide whether a recipient of
Deferred Action for Childhood Arrivals ("DACA"),
who also was paroled into the United States, may be
prosecuted for violating a federal law that prohibits an
alien who is illegally or unlawfully in the United States
from possessing a firearm. Defendant Emmanuel Venegas-Vasquez
("Venegas-Vasquez") is charged with one count of
violating 18 U.S.C. § 922(g)(5). That statute makes it
unlawful for an alien who is "illegally or unlawfully in
the United States" to possess a firearm or ammunition.
Venegas-Vasquez contends that he was not illegally or
unlawfully in the United States, and thus the indictment
should be dismissed for failure to allege an element of the
offense. Venegas-Vasquez relies upon two facts, which the
Government does not dispute. First, in January 2015, United
States Citizenship and Immigration Services
("USCIS") granted Venegas-Vasquez Deferred Action
for Childhood Arrivals ("DACA"). Second, in 2016,
USCIS "paroled" Venegas-Vasquez into the United
States, pursuant to § 212(d)(5)(A) of the Immigration
and Nationality Act ("INA"), as amended, 8 U.S.C.
§ 1182(a)(9)(B)(iii). Based on these facts,
Venegas-Vasquez argues that he was not illegally or
unlawfully in the United States at the time the indictment
alleges he was in possession of two firearms, May 26, 2018.
The Government responds by arguing that Venegas-Vasquez did
not have legal or lawful status in the United States and that
is all that is required under that element of §
922(g)(5). The Court concludes that § 922(g)(5)(A) is
grievously ambiguous regarding whether the phrase
"illegally or unlawfully in the United States"
refers to either presence or status. Because this element
defines the conduct that constitutes a crime, under the rule
of lenity Venegas-Vasquez may not be prosecuted for this
offense. Accordingly, the Court grants Defendant's motion
is an alien citizen of Mexico. It is not disputed that
Venegas-Vasquez unlawfully entered the United States as a
child in 2001. Immigrations and Customs Enforcement
("ICE") records show that Venegas-Vasquez has
applied for neither citizenship nor residence in the United
September 2014, Venegas-Vasquez applied to USCIS under the
DACA program. On January 22, 2015, USCIS granted
Venegas-Vasquez DACA, and renewed his DACA in January 2018.
In January 2015, the USCIS also provided Venegas-Vasquez with
an employment authorization card, allowing him to work in the
United States. In February 2015, the Social Security
Administration issued a social security number to
Venegas-Vasquez. In addition, in March 2016, Venegas-Vasquez
applied for permission to travel to Mexico to visit his
family. USCIS authorized Venegas-Vasquez for parole back into
the United States under § 212(d)(5) of the INA, and
Venegas-Vasquez was paroled back into the United States in
2016. ECF 16-10.
26, 2017, police officers responded to two calls, one from
Venegas-Vasquez' neighbor, who reported hearing gunfire,
and another from Venegas-Vasquez' wife. Police arrived
and took Venegas-Vasquez into custody. With
Venegas-Vasquez' consent, the police searched his truck
and found a loaded 9mm handgun and a loaded AK-47 style
assault rifle. On February 4, 2018, a federal grand jury
indicted Venegas-Vasquez for one count of violating 18 U.S.C.
12(b)(3)(B)(v) of the Federal Rules of Criminal Procedure
"allows a defendant to file a pretrial motion to dismiss
an indictment for failure to state an offense if the motion
can be determined without a trial on the merits."
United States v. Kelly, 874 F.3d 1037, 1046 (9th
Cir. 2017). A pretrial motion to dismiss is appropriate if
the motion involves a question of law as opposed to a
question of fact. Id. In determining whether an
indictment charges a cognizable offense, the Court is bound
by the four corners of the indictment, must accept the truth
of the allegations in the indictment, and cannot consider
evidence that does not appear on the face of the indictment.
United States v. Lyle, 742 F.3d 434, 436 (9th Cir.
2014). The question of law at issue in this pretrial motion
is the meaning of the phrase "illegally or unlawfully in
the United States" in 18 U.S.C. § 922(g)(5)(A).
Statutory Interpretation and § 922(g)(5)
922(g)(5) states that it shall be unlawful for any person
"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 possess in or affecting commerce, any
firearm or ammunition. The statute provides no definitional
guidance on what it means to be "illegally or unlawfully
in the United States." See § 921 (defining
terms for purposes of the statute).
interpretation turns on 'the language itself, the
specific context in which that language is used, and the
broader context of the statute as a whole.'"
Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting
Robinson v. Shell Oil Co., 519U.S. 337, 341(1997)).
When aterm is not further defined by Congress, courts will
construe the term according to its "ordinary and
contemporary common meaning." United States v. W.R.
Grace, 504 F.3d 745, 755 (9th Cir. 2007). Courts may
refer to a dictionary to determine the ordinary and
contemporary common meaning of a word. United States v.
Kilbride, 584 F.3d 1240, 1257 (9th Cir. 2009).
Law Dictionary defines "illegal" as "forbidden
by law" and "illegality" as "an act that
is not authorized by law" or "the state of not
being legally authorized." Black's Law Dictionary
815 (9th ed. 2009). Black's Law Dictionary defines
"unlawful" as "not authorized by law;
illegal." Black's Law Dictionary 1675 (9th ed.
2009). Section 922(g)(5) uses these terms in their adverb
form, modifying the phrase "in the United States."
These dictionary definitions do not resolve a potential
textual ambiguity in the statute, as argued by the parties:
whether "illegally or unlawfully in the United
States" means illegal or unlawful "presence"
or illegal or unlawful "immigration status."
statute does not expressly use the terms "present"
or "presence;" nor does it use the terms
"status" or "immigration status."
Venegas-Vasquez emphasizes that by referring to individuals
who are illegally or unlawfully in the United
States, the focus of § 922(g)(5) is on the
lawfulness of a person's physical presence in the United
States, not their immigration status. In response, the
Government emphasizes the lack of any mention of the word
"presence" in the statute. The Supreme Court has
cautioned that "we ordinarily resist reading words or
elements into a statute that do not appear on its face."
Dean v. United States,556 U.S. 568, 572 (2009). The
Court notes, however, that the word "in," which
does appear in § 922(g)(5), is more naturally read to
relate to physical or ...