     Case: 16-40475      Document: 00514149008         Page: 1    Date Filed: 09/08/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 16-40475                               FILED
                                                                          September 8, 2017

UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
              Plaintiff - Appellee

v.

ERIK ISRAEL JURADO GARCIA,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:13-CR-333-1


Before REAVLEY, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Erik Israel Jurado Garcia entered a conditional guilty plea to one count
of unlawful possession of ammunition under 18 U.S.C. § 922(g)(5)(A), which
prohibits possession of a firearm or ammunition by an alien who is “illegally or
unlawfully in the United States.” Following his sentencing, Garcia appealed
the denial of his motion to dismiss the indictment. 1 Garcia argues that he was
lawfully in the United States at the time of his arrest because he had Special

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1 Garcia’s plea agreement reserved his right to appeal the denial of his motion to
dismiss the indictment. See FED. R. CRIM. P. 11(a)(2).
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Immigrant Juvenile (“SIJ”) status. Alternatively, he argues that if the statute
is construed to apply to him, then it is unconstitutionally vague. For the
following reasons, we VACATE the district court’s judgment.
                                     I. Background
       Garcia, a citizen of Mexico, entered the United States in October 2010 at
the age of seventeen without inspection and authorization or being paroled by
an immigration officer. After immigration officers discovered him a couple of
weeks later in a Texas county jail, the Department of Homeland Security
(“DHS”) charged him with being removable from the United States under
8 U.S.C. § 1182(a)(6)(A)(i). On December 23, 2010, DHS released Garcia on an
Order of Recognizance to the custody of his grandmother, and placed his
immigration proceeding within a nondetained docket.
       Sometime later, a juvenile court in Texas entered an order declaring
Garcia a juvenile dependent on the court due to parental abuse, neglect, or
abandonment, and finding that it was not in his best interest to be returned to
Mexico. Garcia subsequently petitioned for SIJ status, which is a form of
humanitarian relief provided to alien juveniles who have suffered parental
abuse, neglect, or abandonment. 2 See 8 U.S.C. § 1101(a)(27)(J). Applicants for
SIJ status must meet the following criteria:


       2 As the Third Circuit has explained:
               The SIJ provisions of the INA were enacted in 1990 to protect
               abused, neglected, or abandoned children who, with their
               families, illegally entered the United States. Congress provided
               an alternative to deportation for these children. Rather than
               being deported along with abusive or neglectful parents, or
               deported to parents who had abandoned them once in the United
               States, such children may seek special status to remain in the
               United States.
Yeboah v. U.S. Dep’t of Justice, 345 F.3d 216, 221 (3d Cir. 2003); see also H.R.
Conf. Rep. No. 105-405, at 130 (1997), reprinted in 1997 U.S.C.C.A.N. 2941,
2981 (“The language has been modified in order to limit the beneficiaries of
this provision to those juveniles for whom it was created, namely abandoned,
neglected, or abused children . . . .”).
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              an immigrant present in the United States-- (i) who
              has been declared dependent on a juvenile court
              located in the United States . . . and whose
              reunification with 1 or both of the immigrant’s parents
              is not viable due to abuse, neglect, abandonment, or a
              similar basis found under State law; (ii) for whom it
              has been determined in judicial proceedings that it
              would not be in the alien’s best interest to be returned
              to the aliens or parent’s previous country of nationality
              or country of last habitual residence; and (iii) in whose
              case the [DHS Secretary] consents to the grant of
              special juvenile status . . . .

Id. Eligibility for SIJ status further requires, inter alia, that the alien be
“under twenty-one years of age.” 8 C.F.R. § 204.11(c)(1). An alien granted SIJ
status is deemed paroled into the United States for purposes of applying for an
adjustment of status to that of permanent resident, despite not having been
inspected and admitted or otherwise paroled into the United States. See 8
U.S.C. § 1255(h).
       Garcia’s SIJ petition was approved in December 2011. The approval
notice informed Garcia that such approval “does not in itself grant any
immigration status and does not guarantee that the alien beneficiary will
subsequently be found to be eligible for a visa, for admission to the United
States, or for an extension, change, or adjustment of status.” 3 On the same
day that Garcia filed his SIJ petition, he also applied for employment
authorization, which was approved, and adjustment of status to that of
permanent resident under 8 U.S.C. § 1255, which remained pending at the
time of his arrest.
       In March 2013, police in Laredo, Texas, pursuing a lead in a kidnapping


       3Following oral argument, the Government moved to supplement the record to include
the Form I-797 notice sent to Garcia informing him that his application for SIJ classification
was approved. Garcia does not oppose this motion. We grant the Government’s unopposed
motion to supplement the record under Federal Rule of Appellate Procedure 10(e)(2).
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case, stopped a vehicle in which Garcia was a passenger. The police discovered
a magazine to a SIG Sauer semiautomatic pistol in Garcia’s pocket containing
six live rounds. A short distance from the vehicle, the police also found a loaded
SIG Sauer semiautomatic pistol. At the time of his arrest, Garcia had just
turned twenty years of age and thus still had SIJ status.
       A federal grand jury indicted Garcia under 18 U.S.C. § 922(g)(5)(A) as an
alien unlawfully in the United States in possession of (1) a firearm (Count One)
and (2) ammunition (Count Two). After his initial guilty plea was withdrawn,
Garcia subsequently moved to dismiss the indictment on the ground that his
SIJ status meant that he was not illegally or unlawfully in the United States
within the meaning of § 922(g)(5)(A) or, alternatively, that § 922(g)(5)(A) and
its implementing regulation are unconstitutionally vague as applied to aliens
with SIJ status. The court denied the motion to dismiss, and Garcia entered a
conditional guilty plea on Count Two, which reserved his right to appeal the
denial of his motion to dismiss the indictment. The district court sentenced
Garcia to eighty-four months of imprisonment and three years of supervised
release. 4   Garcia timely filed a notice of appeal challenging the denial of his
motion to dismiss the indictment and the resulting judgment and sentence.
See FED. R. APP. P. 4(b)(2).
                            II. Standard of Review
       We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) over
the appeal from a final judgment and sentence imposed by a United States
district court. We review the denial of a motion to dismiss an indictment de
novo when the denial was based on either an interpretation of a federal statute,
United States v. Coleman, 609 F.3d 699, 703 (5th Cir. 2010), or a determination




       4Garcia was also convicted in Texas state court of aggravated kidnapping and
sentenced to twelve years of imprisonment.
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of a statute’s constitutionality, United States v. Ollison, 555 F.3d 152, 160 (5th
Cir. 2009).
                                III. Discussion
      Garcia contends that the district court erred in denying his motion to
dismiss the indictment. First, Garcia argues that, at the time of his arrest, he
was not “illegally or unlawfully in the United States” under 18 U.S.C.
§ 922(g)(5)(A) because “he was lawfully paroled into the United States as a
Special Immigration Juvenile.”      Alternatively, he argues that, if section
922(g)(5)(A) is construed to apply to him, then it is unconstitutionally vague.
We conclude that strong arguments support the conclusion that Garcia was
illegally or unlawfully in the United States under § 922(g)(5)(A), however,
given our prior precedents and solid arguments the other way, we conclude
that Garcia prevails under the rule of lenity.
A. Was Garcia “Illegally or Unlawfully in the United States” under 18
   U.S.C. § 922(g)(5)(A)?
      18 U.S.C. § 922(g)(5)(A) makes it unlawful for any person to possess any
firearm or ammunition “who, being an alien . . . is illegally or unlawfully in the
United States.” The only dispute over the statute’s application to Garcia is
whether Garcia was illegally or unlawfully in the United States at the time of
his arrest.
      “The phrase ‘illegally or unlawfully in the United States’ is not defined
by the statute.” United States v. Flores, 404 F.3d 320, 326 (5th Cir. 2005). We
have previously interpreted the phrase to refer to one “whose presence within
the United States is forbidden or not authorized by law.” United States v.
Arrieta, 862 F.3d 512, 515 (5th Cir. 2017) (quoting United States v. Orellana,
405 F.3d 360, 366 (5th Cir. 2005)).         The parties have argued about the
construction of this phrase as set forth in the implementing regulation issued
by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF

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regulation”). See 27 C.F.R. § 478.11.
           A threshold inquiry in this case, however, is whether we must give any
deference to the ATF regulation. We have previously held that, “without
deciding whether full Chevron deference is appropriate . . . , we owe at least
some degree of deference to the ATF’s interpretive regulation of § 922(g)(5)(A)
because it is ‘both reasonable and consistent with our interpretive norms for
criminal statutes.’” Flores, 404 F.3d at 326–27 (footnote omitted) (quoting
United States v. Atandi, 376 F.3d 1186, 1189 (10th Cir. 2004)). In analyzing
the same statute, we have also observed that “the level of deference due an
agency’s interpretation of a statute imposing criminal liability is uncertain,
particularly when the promulgating agency lacks expertise in the subject
matter being interpreted.” Orellana, 405 F.3d at 369. The Supreme Court has
now resolved this uncertainty, instructing that no deference is owed to agency
interpretations of criminal statutes. Abramski v. United States, 134 S. Ct.
2259, 2274 (2014).
       In Abramski, the Supreme Court declined to show any deference to the
ATF’s interpretation of 18 U.S.C. § 922—the statute at issue here. Id. The
Court explained that “criminal laws are for courts, not for the Government, to
construe. . . . Whether the Government interprets a criminal statute too
broadly . . . or too narrowly . . . a court has an obligation to correct its error.”
Id. 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). 5




       5Even though we owe no deference to the ATF regulation, we may still consider the
agency’s interpretation to the extent it is persuasive. See Baylor Cty. Hosp. Dist. v. Price,
850 F.3d 257, 261 (5th Cir. 2017).
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       Garcia next argues that because his SIJ status is similar to the
immigration status at issue in United States v. Orellana, we should apply the
rule of lenity to exclude him from criminal liability. See 405 F.3d at 365–71.
We agree. 6
       A good argument can be made that Congress did not intend to insulate
otherwise unlawfully present aliens with SIJ status from criminal prosecution
under § 922(g)(5)(A). However, we are bound by our precedent in Orellana,
which creates at least enough ambiguity that the rule of lenity should apply.
See Orellana, 405 F.3d at 370–71 (applying the rule of lenity to an analogous
immigration status of temporary protected status). 7
       We VACATE the judgment of the district court and remand for
proceedings consistent with this opinion.




       6   The key feature of temporary protective status that the Orellana opinion held
resulted in "lawful status," was that it cured the bars to adjustment of status that otherwise
prevent those who enter the country unlawfully from obtaining permanent resident status.
405 F.3d at 370 (explaining that a TPS beneficiary "receives the privileges of applying for
adjustment of status"). SIJ status similarly allows a recipient to adjust their status. 8 U.S.C.
1255(h)(1); Ramirez v. Brown, 852 F.3d 954, 963 (9th Cir. 2017) (noting the government's
argument that the SIJ statute provides an even more "precise exception" to the bars on
adjusting status than does the TPS statute, but then explaining that the two statutes are
functionally equivalent in eliminating those barriers).

       7 Our recent decision in United States v. Arrieta, which addressed an executive order
not a statute, examined the first part of the Orellana analysis and determined that the
defendant in Arrieta lacked any arguable status unlike that of the defendant in Orellana who
“possessed a type of lawful status granted by Congress.” Arrieta, 862 F.3d at 515. Because
our case involves an immigration status like the one at issue in Orellana, Arrieta does not
aid our decision here.
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