17-3337-cr
United States v. Balde



                             UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT



                                        August Term, 2018

                         Argued: November 6, 2018     Decided: June 13, 2019

                                      Docket No. 17-3337-cr



                                    UNITED STATES OF AMERICA,

                                                           Appellee,

                                             — v. —

                                       SOULEYMANE BALDE,

                                                           Defendant-Appellant.




B e f o r e:

               HALL and LYNCH, Circuit Judges, and GARDEPHE, District Judge.*




      Souleymane Balde, a citizen of Guinea, appeals his conviction for one
count of unlawful possession of a firearm by an “alien . . . [who] is illegally or
unlawfully in the United States,” in violation of 18 U.S.C. § 922(g)(5)(A). He


*
 Judge Paul G. Gardephe, of the United States District Court for the Southern
District of New York, sitting by designation.
challenges his conviction on two grounds. First, he argues that at the time he
possessed the firearm he was not “in” the United States because he had not
“entered” the United States as that term is defined for the purposes of
immigration law, and second, he argues that even if he was “in” the United
States, he was not present “illegally or unlawfully.” Finding both arguments
unavailing, we AFFIRM the judgment of the district court.




                    MATTHEW B. LARSEN, Federal Defenders of New York, New
                        York, NY, for Defendant-Appellant Souleymane Balde.

                    ELINOR TARLOW, Assistant United States Attorney (Anna M.
                         Skotko, on the brief), for Geoffrey S. Berman, United
                         States Attorney for the Southern District of New York,
                         New York, NY.




GERARD E. LYNCH, Circuit Judge:

      Souleymane Balde pled guilty to one count of unlawful possession of a

firearm by an “alien . . . [who] is illegally or unlawfully in the United States,” in

violation of 18 U.S.C. § 922(g)(5)(A). On appeal, Balde argues that the charge

against him must be dismissed for two reasons. First, he argues that to be “in the

United States” within the meaning of the criminal statute, a noncitizen must have

“entered” the United States as that term is defined in immigration law, and that

merely being physically present within our borders does not suffice. Second, he



                                           2
argues that, even if he was “in” the United States when he possessed a firearm,

he was not then here “illegally or unlawfully,” given the particular circumstances

of his release from immigration detention and his immigration status.

      Because we find both arguments unavailing, we AFFIRM the judgment of

the district court.

                                BACKGROUND

      Souleymane Balde is a citizen of Guinea. He first arrived in the United

States as a child, without lawful immigration status. In May 2005, Balde sought to

adjust his status to become a lawful permanent resident, apparently pursuant to

the terms of a class action settlement agreement.1 To qualify for adjustment of

status, Balde had to be interviewed by the United States Citizenship and

Immigration Services (”USCIS”). His interview was originally scheduled for

December 1, 2005.

      Several months after applying, however, Balde learned that his mother was


1
 Balde claimed that he applied under the LULAC (Newman) settlement
agreement. That agreement “allow[ed] for those who meet certain requirements
to apply or reapply for Temporary Resident status under the 1986 amnesty
program of [8 U.S.C. § 1255].” News Release, USCIS, 2005 WL 1157041 (May 16,
2005) (extending deadline to apply for legalization under the LULAC (Newman)
settlement agreement until December 31, 2005); see also 8 C.F.R. § 245a.14
(describing procedures for applying for legalization under LULAC and two other
class action settlement agreements).

                                         3
seriously ill and that unless he traveled to Guinea to visit her soon, he risked

missing his last chance to see her alive. He asked his attorney to postpone the

interview in order for him to travel abroad. His lawyer told Balde that he would

contact USCIS to postpone the interview. The lawyer wrote to USCIS, stating that

Balde would be unable to attend his interview due to unforeseen circumstances.

Balde also applied for advance parole, a status which allows a noncitizen to

travel abroad temporarily and return to the United States without jeopardizing

any existing legal status or pending application for immigration relief. USCIS

granted advance parole, but did not act on the request to postpone the interview.

      Balde did not appear for his scheduled interview, although he did not

leave the United States until several weeks after the scheduled interview date

and USCIS had not granted an adjournment. On January 27, 2006, while Balde

was out of the country, USCIS denied his application for adjustment of status

because he had missed his interview and because it determined that the request

for postponement submitted by Balde’s attorney did not demonstrate sufficient

reason to postpone it. The agency also revoked Balde’s advance parole.

      Balde's mother died on January 28, 2006. On March 17, 2006, Balde flew

back to New York City and was stopped at John F. Kennedy Airport, where



                                          4
Customs and Border Protection (“CBP”) agents informed him for the first time

that his advance parole had been revoked. CBP agents detained Balde and

initiated removal proceedings, charging him as inadmissible under 8 U.S.C.

§ 1182(a)(7)(A)(i)(I), which applies to noncitizens seeking admission without a

valid visa, passport, or other suitable travel document. In due course, an

immigration judge issued an order of removal. Balde appealed, first to the Board

of Immigration Appeals (“BIA”), which dismissed the appeal, and then to this

Court, which granted a stay of removal pending decision.

      While his appeal was pending before this Court and his removal was

stayed, Balde sought supervised release from detention. The United States

Immigration and Customs Enforcement Agency (“ICE”) agreed to grant such

release, and notified Balde that he would be released under the Intensive

Supervision Appearance Program (“ISAP”). First implemented in 2003, ISAP

offers “an alternative[] to detention for final-order aliens” who are unable to be

removed, and provides for electronic monitoring and supervision for program

participants. See Nguyen v. B.I. Inc., 435 F.Supp.2d 1109, 1112–13 (D. Or. 2006).

      Following a remand from this Court on consent of the parties, the BIA

again denied relief to Balde on December 19, 2008. Balde did not appeal to this


                                          5
Court, and the order of removal became final. Balde’s passport expired around

that time, however, and the government was therefore unable to effect his

deportation. He remained at liberty, under supervision. Immigration officials

modified the terms of that supervision in 2012. At no time, however, did Balde

hold a visa or other legal authorization to enter the United States, and he

remained subject to a final order of removal.

      On December 14, 2015 — seven years after his removal order became final

— Balde was involved in a fight in a Bronx delicatessen. During the altercation,

Balde pulled out a gun and pointed it at others inside the deli. He then left the

premises, but returned a short while later and fired a single shot into the air from

the passenger seat of a vehicle outside the deli.

      When officers from the New York City Police Department responded to

the scene, witnesses identified the car from which the shot had been fired as it

pulled up to an intersection nearby. Police officers pursued and stopped the

vehicle. Balde got out of the car from the front passenger seat, and was quickly

apprehended. A police search discovered four cartridges in Balde’s jacket pocket,

and a revolver under the front passenger seat where Balde had been sitting.




                                          6
Witnesses at the deli later identified Balde as the person who had fired the

gunshot.

      A grand jury indicted Balde on one count of possession of a firearm in

violation of 18 U.S.C. § 922(g)(5). He moved to dismiss the indictment. After the

district court denied the motion he pled guilty pursuant to an agreement that

preserved his right to appeal the district court’s denial of his motion. The district

court sentenced Balde to 23 months’ imprisonment and two years of supervised

release. He now appeals that conviction.

                                   DISCUSSION

      18 U.S.C. § 922(g)(5)(A) prohibits an “alien . . . illegally or unlawfully in the

United States” from possessing a firearm or ammunition. Balde argues that

under his particular immigration circumstances he was not “in” the United States

when he possessed the firearm and that, even if he was, he was not here

“illegally or unlawfully.”

      We review the denial of a motion to dismiss an indictment de novo. United

States v. Kirsch, 903 F.3d 213, 221 (2d Cir. 2018). If we were persuaded by either of

Balde's arguments, we would be required to vacate the district court’s judgment

and remand with instructions to dismiss the indictment. However, given the



                                           7
particulars of Balde’s situation, we find that he is within the category of

individuals prohibited from possessing a firearm under 18 U.S.C. § 922(g)(5)(A),

and we therefore affirm the judgment of the district court.

I.    “In the United States”

      Balde first argues that the prohibition of firearms possession in

§ 922(g)(5)(A) is not triggered by mere physical presence within the territory of

the United States, but instead requires that a “defendant must have ‘entered’ the

country as a matter of immigration law.” Appellant's Br. at 17. For the technical

purposes of immigration law, Balde notes, he did not “enter” the United States

when he returned in March 2006, and he should therefore be treated as if he were

still at the border seeking admission. Because he has never entered, Balde argues,

he is not “in” the United States within the meaning of 18 U.S.C. § 922(g)(5).

      As with most matters of statutory interpretation, we start with the text of

the statute. “Statutory analysis necessarily begins with the plain meaning of a

law's text and, absent ambiguity, will generally end there.” Dobrova v. Holder, 607

F.3d 297, 301 (2d Cir. 2010) (internal quotation marks and alterations omitted).

“In conducting such an analysis, we review the statutory text, considering the

ordinary or natural meaning of the words chosen by Congress, as well as the


                                          8
placement and purpose of those words in the statutory scheme.” Id. (internal

quotation marks omitted).

      The plain meaning here is clear. “In” is an ordinary, familiar English word,

with a well understood meaning. Its principal definition in the Oxford English

Dictionary is “[w]ithin the limits or bounds of, within (any place or thing).” In,

OXFORD ENGLISH DICTIONARY (2d ed. 1989); see also Taniguchi v. Kan Pac. Saipan,

Ltd., 566 U.S. 560, 566–66 (2012) (relying on dictionary definitions to aid in

interpreting statutory text). Someone arriving to meet a friend might call to say

that she was “in the lobby;” she might tell her friend over dinner that she was “in

Texas last weekend.” It would be clear to the friend in both cases that the speaker

meant that she was physically present in those locations at the time she indicated

she was “in” them. The plain meaning of the statute reflects that ordinary

meaning: a person, citizen or noncitizen, is “in” the United States when he is

present within its geographic borders. The text is therefore “absent ambiguity”

and our analysis presumptively ends there. Dobrova, 607 F.3d at 301.

      Accepting Balde’s argument would invert the normal plain meaning rule

of statutory interpretation by substituting a technical term-of-art meaning for the

ordinary plain meaning of a straightforward English word. “In” is not a technical


                                          9
term with a special meaning in immigration law. In order to adopt Balde’s

interpretation, we would have to replace the plain meaning of “is . . . in the

United States” with the different meaning of “has entered the United States,” thus

substituting a word that is “a specific legal term” within immigration law. See

United States v. Lopez-Perera, 438 F.3d 932, 935 (9th Cir. 2006).

      We decline to do so for four reasons. First, that is simply not the language

that Congress chose. The statute deliberately uses the ordinary word “in,” not the

more technical term “entered.”

      Second, substituting “has entered” for “is in” would change the meaning

of the statute, even with respect to one who unquestionably had “entered” the

United States in the technical immigration sense of the word. The language

defining the crime refers to a noncitizen who “is illegally or unlawfully in the

United States.” A noncitizen who enters the United States with a visa and

overstays the term of that visa is clearly in the United States illegally but, at least

if his decision to stay was made after his arrival, it would not be correct to say

that he entered the United States illegally.

      Third, we are interpreting a section of the criminal code that prohibits gun

possession by various categories of person, not an immigration provision.


                                           10
Criminal laws are ordinarily written to be understood by the non-specialist

individuals who are subject to the law, law enforcement officers, prosecutors,

and jurors, not to be given arcane hidden meanings identifiable only by

immigration lawyers — and even by them only by identifying a “ghost” technical

term supposedly lurking behind the actual, non-technical words used in the

statute. See, e.g., Mitsui & Co. v. Am. Exp. Lines, Inc., 636 F.2d 807, 814 (2d Cir.

1981) (“Legislation when not expressed in technical terms is addressed to the

common run of men and is therefore to be understood according to the sense of

the thing, as the ordinary man has a right to rely on ordinary words addressed to

him.”) (citations omitted); see also Taniguichi, 566 U.S. at 568 (“That a definition is

broad enough to encompass one sense of a word does not establish that the word

is ordinarily understood in that sense”).

      Fourth, Congress clearly knows how to import the technicalities of

immigration law into the federal criminal code when it so chooses. For example,

in the subsection immediately following the one at issue here, Congress

prohibited possession of firearms by noncitizens who were “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).” 18 U.S.C. § 922(g)(5)(B). The


                                            11
fact that Congress did not choose similar technical language in 18 U.S.C.

§ 922(g)(5)(A) counsels against interpreting “in” in any manner other than by

giving it its plain meaning.

      Balde bases his argument almost entirely on United States v. Lopez-Perera, a

decision in which the Ninth Circuit held that § 922(g)(5)(A) inapplicable to a

defendant who had not “entered” the United States within the meaning of

immigration law. 438 F.3d 932 (9th Cir. 2008). But the facts of that decision are

easily distinguishable from those before us. In Lopez-Perera, the defendant drove

his van from Mexico into the San Ysidro Port of Entry in California, claiming to

be a United States citizen. Id. at 932–33. At the first checkpoint, an officer directed

Lopez-Perera to a secondary inspection area, where he “waited approximately

twenty-five minutes . . . and then drove his van toward the north exit of the San

Ysidro Port of Entry.” Id. at 933. Law enforcement officers stopped him before he

could leave the area and discovered a revolver in the van. Id. Thus, unlike Balde,

Lopez-Perera had never left the border area (he was stopped between inspection

sites within the Port of Entry) and he had been across the geographic border for

mere minutes, not (as Balde had) for years.




                                          12
      Lopez-Perera’s legal reasoning, moreover, is not persuasive. In holding that

§ 922(g)(5)(A) requires an “entry,” the Ninth Circuit deferred to a regulation

promulgated by the then-Bureau of Alcohol, Tobacco and Firearms (“ATF”). See

id. at 934–35. That regulation purports to define “[a]lien[s] illegally or unlawfully

in the United States” as noncitizens who “are not in valid immigrant,

nonimmigrant or parole status,” including (among other categories) any

noncitizen “[w]ho unlawfully entered the United States without inspection and

authorization by an immigration officer and who has not been paroled into the

United States under [8 U.S.C. § 1182(d)(5)(A)].” 27 C.F.R. § 478.11 (emphasis

added). The Ninth Circuit concluded that Lopez-Perera was not within this

definition because he “was never free from official restraint and, therefore, never

entered the United States.” Lopez-Perera, 438 F.3d at 935.

      But even if the ATF regulation were entitled to deference, it does not help

Balde. First, the regulation does not purport to define being “in the United

States” as requiring an entry. Rather, it defines the entire phrase “[a]lien illegally

or unlawfully in the United States,” thus conflating the two issues Balde wishes

to separate. Second, it primarily defines the term as referencing noncitizens “not

in valid immigrant, nonimmigrant, or parole status,” thus focusing primarily on


                                          13
what makes their presence unlawful rather than on what constitutes being “in”

the country, and it does so in a way that encompasses Balde, who has never had

a valid immigrant or non-immigrant visa and is not, as explained in Part II below,

in “parole status.” And third, the language of the regulation referencing

noncitizens who have “entered” the United States is only one example of those

covered by that definition; another category that is covered is “any alien . . .

[u]nder an order of deportation, exclusion, or removal, . . . whether or not he or

she has left the United States.”27 C.F.R. § 478.11. That category makes no

reference to whether or not the individual ever technically effected an “entry”

into the United States and by its plain language includes Balde, who was under

an order of removal when he was found in possession of a firearm. Thus,

however it might have affected Lopez-Perera, when read properly and fully the

regulation offers no support to Balde’s argument.

      In any event, we are not required to defer to the ATF’s interpretation. Since

Lopez-Perera was decided, the Supreme Court has clarified that law enforcement

agency interpretations of criminal statutes are not entitled to deference: “Whether

the Government interprets a criminal statute too broadly (as it sometimes does)

or too narrowly . . . , a court has an obligation to correct its error.” Abramski v.


                                           14
United States, 573 U.S. 169, 191 (2014); see also United States v. Gayle, 342 F.3d 89, 93

n.4 (2d Cir. 2003) (noting this Court had requested additional briefing on the

issue of deference and both parties agreed that a definition in 27 C.F.R. § 478.11

was not entitled to deference); United States v. Garcia, 707 F. App'x 231, 234 (5th

Cir. 2017) (“Following the Supreme Court's instruction that no deference is owed

to agency interpretations of criminal statutes, specifically the ATF's interpretation

of 18 U.S.C. § 922, we decline to show deference to the ATF regulation

interpreting § 922(g)(5)(A).”).

      Given these considerations, we decline to adopt the rule that Balde would

like us to derive from Lopez-Perera. We conclude instead that the “in the United

States” element of 18 U.S.C. § 922(g)(5)(A) requires only that a noncitizen be

physically present within the United States. It is uncontested that Balde was

physically present here, and so his conviction will stand unless he is able to show

he was not present illegally or unlawfully.

II.   “Illegally or Unlawfully” Present

      Balde next argues that, even assuming that he is considered to have been

“in” the United States within the meaning of the statute, he was not present

“illegally or unlawfully” because he was effectively paroled into the country


                                           15
when he was released from detention in 2007. His argument essentially rests on

what at best amounts to an administrative mistake. Balde did not seek parole as

that status is defined in 8 U.S.C. § 1182(d)(5)(A), nor did the government

understand itself to be granting him parole at the time it released him from

detention. Balde argues, however, that, because he had not been finally ordered

removed when he was released from detention, the only statutory authority

under which ICE could have released him was the parole authority. Since Balde

should not have been found eligible for the program under which he sought and

was granted supervised release, he reasons, he must have been, sub silentio,

granted parole.

      It is helpful to contextualize Balde’s argument by reviewing the various

statutory authorities providing for the detention of noncitizens. The

government’s authority to detain an individual depends in part on whether that

person is seeking admission to the United States or, once having entered, is

removable for some reason. See, e.g., 8 U.S.C. § 1226(c) (describing certain

categories of noncitizens subject to mandatory detention); 8 U.S.C. § 1225(b)(2)(A)

(describing detention during pendency of inadmissibility proceedings). Any

status that Balde had when he left the United States had been revoked before he


                                         16
returned. Thus, when he arrived at the airport, he was treated as seeking

admission. And an alien seeking admission, like Balde, “shall be detained”

pending a removal proceeding “if the examining immigration officer determines

that [he] is not clearly and beyond a doubt entitled to be admitted.” 8 U.S.C.

§ 1225(b)(2)(A).

      The government may also “parole” any noncitizen “applying for

admission” into the United States “temporarily under such conditions as [it] may

prescribe only on a case-by-case basis for urgent humanitarian reasons or

significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Parole does not change

parolees’ immigration status: they remain “at the border” for the purposes of

immigration law and are treated as applicants for admission into the country.

Ibragimov v. Gonzales, 476 F.3d 125, 134 (2d Cir. 2007). But parolees’ physical

presence within the United States cannot be said to be unlawful or illegal because

it is authorized by the Attorney General, and parole has long been understood to

constitute lawful status. See Cruz-Miguel v. Holder, 650 F.3d 189, 198 (2d Cir. 2011)

(“In other words, the United States accepts an alien paroled under

§ 1182(d)(5)(A) into the country for as long as the humanitarian or public benefit

purpose persists.”); see also United States v. Al Sabahi, 719 F.3d 305, 309 (4th Cir.


                                           17
2013) (relying on 27 C.F.R. § 478.11 to note that a defendant is “not illegally or

unlawfully in the United States if [he or she is] in valid parole status.”); Matter of

Castillo-Padilla, 25 I. & N. Dec. 257, 259 (BIA 2010) (“An alien paroled into the

United States under section 212(d)(5) of the Act is authorized to come into the United

States ‘temporarily’ for urgent humanitarian reasons or significant public benefit

and under strict conditions defining his or her status. After the purpose of the

parole has been served, the alien returns to custody, and his or her case is dealt

with in the same manner as any other applicant for admission.” (emphasis

added)).

       Balde does not dispute that, when he presented himself at the airport on

his return from Guinea, he was detained, not paroled, within the meaning of

these provisions. His argument focuses, rather, on what happened thereafter,

during the lengthy process of adjudicating the government’s effort to remove

him.

       If a noncitizen is administratively determined to be inadmissible, a

removal order is entered and further immigration detention is governed by 8

U.S.C. § 1231. The government is required to detain such an individual during

the “removal period,” the 90-day period (extendable under certain


                                          18
circumstances, see 8 U.S.C. § 1231(a)(1)(C)), that begins on either (1) “[t]he date

the order of removal becomes administratively final,” (2) the date of a final order

from a Court of Appeals “[i]f the removal order is judicially reviewed and if a

court orders a stay of the removal,” or (3) the date of release from criminal

detention or confinement. See id. § 1231(a)(1)(B), (2). If, at the end of the removal

period, the individual still has not been removed, he or she may be released

“subject to supervision under regulations prescribed by the Attorney General.”

Id. § 1231(a)(3). But an individual deemed inadmissible by reason of criminal

conduct, or one who is deemed a danger to the community or a risk not to

comply with the order of removal, “may be detained beyond the removal period

and, if released, shall be subject to the terms of supervision in” 8 U.S.C.

§ 1231(a)(3). Id. § 1231(a)(6). Even for individuals detained beyond the removal

period, however, continued detention is presumptively limited to six months

unless their removal is “reasonably foreseeable.” Clark v. Martinez, 543 U.S. 371,

378 (2005); see also Zadvydas v. Davis, 533 U.S. 678, 701 (2001).

      At the time ICE granted Balde’s application for supervised release, he

appears to have fallen outside the categories for which such release was

available. He was required to be detained when he presented himself at the


                                          19
border when was not admitted or paroled. And once a stay had been granted by

this Court pending appeal, until the final resolution of the appeal Balde had not

entered the “removal period,” let alone reached the expiration of that period, at

which point he would become eligible for release under the conditions set forth

in § 1231(a)(3). See 8 U.S.C. § 1231(a)(6).

      In the documentation accompanying Balde’s release from detention, ICE

stated that it was reviewing his continued detention pursuant to 8 C.F.R. § 241.4.

That regulation states that it addresses the government’s “authority to continue

an alien in custody or grant release [under 8 U.S.C. § 1231(a)(6)] or parole under

[8 U.S.C. § 1182(d)(5)(A)].” Id. § 241.4. Balde argues that he could not have been

granted release under § 1231(a)(6), even though the documentation suggests that

is what ICE contemplated, because his appeal was still pending and thus the

removal period had not begun. He therefore argues that, if ICE released him

pursuant to 8 C.F.R. § 241.4, the Court should construe that release as parole.

      Nothing in the record, however, suggests that Balde applied for, or that the

government granted, humanitarian parole. Instead, Balde wrote that he was

seeking supervised release, and the government released him under the ISAP

program, which provides for the kind of release he requested. If, as Balde


                                              20
contends, he was in fact ineligible for that program because he was not yet

subject to a final order of removal, that would mean at most that the government

may have been without authority to release Balde from detention when it did.

But that does not convert his release into his being paroled into the country

within the meaning of 8 U.S.C. § 1182(d)(5)(A), given the absence of any explicit

determination by the government that such parole was contemplated and any

consideration of whether the “urgent humanitarian reasons or significant public

benefit” required for such discretionary relief existed. Indeed, Balde does not

contend that such reasons existed in his case.

      Balde also does not contend that any individual under an order of removal

who is properly released under supervision pursuant to § 1231(a)(6) is lawfully

present in the United States for purposes of 18 U.S.C. § 922(g)(5)(A), and any

such contention would be unpersuasive in any event. A noncitizen who has been

determined to be inadmissible and ordered removed is not lawfully in the United

States, whether he remains in detention or has been granted conditional liberty

under supervision while awaiting execution of the order of removal. Release on

supervision makes it lawful for such a person to be outside of jail; it does not

change his or her immigration status. Cf. United States v. Bravo-Muzquiz, 412 F.3d


                                         21
1052, 1055 (9th Cir. 2005) (noncitizen’s release from custody on an immigration

bond does not change his otherwise unlawful status). An alien under an order of

removal who has not been paroled, and who is permitted supervised release in

error when he had not yet become eligible for such release by virtue of expiration

of his removal period (such as Balde), can have no greater lawful status than one

who was properly released under § 1231(a)(6).

      In any event, whatever may have been the case at the moment of Balde’s

release from detention and admission to the ISAP program, the key inquiry for

purposes of § 922(g)(5)(A) is whether a noncitizen “lacks lawful immigration

status on the date charged in his indictment.” United States v. Lucio, 428 F.3d 519,

525 (5th Cir. 2005); see also United States v. Latu, 479 F.3d 1153, 1157 (9th Cir. 2007)

(noting that defendant was “found to be in possession of a handgun on May 15,

2004,” and therefore “[t]o sustain a conviction under § 922(g)(5)(A), the

government must prove that, on that date, Latu was ‘illegally or unlawfully in the

United States’” (emphasis added)). There is no dispute that, by the time of the

conduct for which he was indicted, Balde had a final order of removal lodged

against him, even if the government was unable to remove him at that point, and

had exceeded the 90-day removal period. Therefore, by that time, his continued


                                           22
supervised release from detention was firmly within the authority provided by 8

U.S.C. § 1231(a)(6) and would not constitute parole.

      Having determined that Balde was not paroled, we have little trouble

concluding that he is within the category of individuals prohibited by

§ 922(g)(5)(A) from possessing a firearm. In enacting the statutory scheme,

Congress decided that, except for very limited categories of persons, noncitizens

who are not lawful permanent residents should be prohibited from possessing a

firearm in or affecting commerce. See generally 18 U.S.C. § 922(g)(5). Its choice of

language, which prohibits firearm possession both by most holders of

non-immigrant visas and by all those unlawfully present, covers large numbers

even of those who have temporary authorization to enter the country, id. at

§ 922(g)(5)(B), as well as those who have no such authorization, id. at

§ 922(g)(5)(A). The facts of Balde’s case make clear that he is in the latter

category: he has been finally adjudicated to be unlawfully present. Permission to

reside at liberty under supervised conditions rather than in immigration

detention does not equate to a conferral of lawful status in the country, and

therefore does not confer permission to possess firearms. Our sister circuits have

upheld convictions under § 922(g)(5)(A) of individuals who had an application


                                          23
for relief pending or who were in removal proceedings that were still in process

and had not yet resulted in entry of a final removal order. See, e.g., Latu, 479 F.3d

at 1158–59 (affirming conviction of defendant who had pending application for

adjustment of status); United States v. Atandi, 376 F.3d 1186, 1190 (10th Cir. 2004)

(finding defendant was illegally or unlawfully present when he failed to satisfy

conditions of student visa, concluding “[t]he fact that he had not yet been

ordered removed is not relevant to the question of whether or not his presence in

the United States was then authorized”). We see no principled reason why such

individuals should be considered to be unlawfully present, even before entry of a

final removal order, while Balde, whose removability had been fully litigated

before the agency and this Court resulting in a final determination that he had no

legal right to be in the United States, should not be.

      Accordingly, in light of Balde’s immigration status at the time of the

conduct underlying his arrest, we conclude that he was properly prosecuted

under Section 922(g)(5)(A).

                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the judgment of the district court.




                                          24
