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United States v. Venegas-Vasquez

United States District Court, D. Oregon

April 19, 2019

UNITED STATES OF AMERICA
v.
EMMANUEL VENEGAS-VASQUEZ, Defendant.

          Billy 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 States.

          Conor Huseby, Assistant Federal Public Defender, Office of the Federal Public Defender, Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon United States District Judge.

         In this 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 to dismiss.

         BACKGROUND

         Venegas-Vasquez 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 States.

         In 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.[1]

         On May 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. § 922(g)(5).

         STANDARDS

         Rule 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).

         DISCUSSION

         A. Statutory Interpretation and § 922(g)(5)

         Section 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).

         "[S]tatutory 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).

         Black's 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."

         The 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 ยง 922(g)(5), is more naturally read to relate to physical or ...


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