United States v. Lopez

          MEMORANDUM OPINION AND ORDER

         On August 14, 2017, the Honorable Judge Clifton L. Corker, United States Magistrate Judge, entered a Report and Recommendation (“R&R”) [D. 28] in which he recommended that the Court deny Defendant Diego Gonzalez Lopez's motion to dismiss the indictment [D. 11]. This matter is presently before the Court on Mr. Lopez's objection to the R&R [D. 29], which the government opposes [D. 30]. For the reasons that follow, the R&R will be accepted in part and overruled in part, and the motion to dismiss the indictment will be granted.

         Mr. Lopez was brought to the United States illegally when he was four years old. In January 2017, he was approved for deferred status under the Deferred Action for Childhood Arrivals (DACA) administrative program.^[1] On April 8, 2017, Mr. Lopez was arrested for driving under the influence, and law enforcement officers found two firearms and ammunition in his vehicle. The United States Citizenship and Immigration Services (USCIS) consequently terminated his DACA authorization, effective May 18, 2017. On June 13, 2017, a federal grand jury indicted Mr. Lopez on one count of knowingly possessing firearms as “an alien illegally and unlawfully in the United States, ” in violation of 18 U.S.C. § 922(g)(5) [D. 7].

         Mr. Lopez challenges the indictment on grounds that he was not “illegally or unlawfully” in the United States at the time of his arrest, in light of his then-active DACA authorization. In the alternative, Mr. Lopez alleges that 18 U.S.C. § 922(g)(5) is unconstitutionally vague as applied to him. On July 26, 2017, a hearing on Mr. Lopez's motion to dismiss the indictment was held before Magistrate Judge Corker, who recommended that the Court deny the motion. In his timely objection to the R&R [D. 29], Mr. Lopez contends that Magistrate Judge Corker erred in two interlocking ways: (1) by confining his analysis of the phrase “illegally and unlawfully in the United States” under 18 U.S.C. § 922(g)(5) to the civil standard provided in the Immigration and Naturalization Act (INA), and (2) by relying on this immigration-related definition to reach the conclusion that the statute is not void for vagueness.^[2] The Court will address each of Mr. Lopez's objections in turn.

         I. Interpretation of “Illegally or Unlawfully in the United States”

         Mr. Lopez first contends that because § 922(g)(5) does not define “illegally or unlawfully in the United States, ” the Court should interpret those words based solely on their plain meaning. According to Mr. Lopez, the phrase refers only to lawful presence, not alien status, and so any reliance on INA standards is inappropriate. Under his interpretation, the fact that “a DACA recipient may not have lawful immigration status under the INA … does not necessarily mean that their presence in the United States remains illegal or unlawful.” [D. 29, at 3 (emphasis added)].

         In interpreting a criminal statute, courts “must follow the plain and unambiguous meaning of the statutory language.” United States v. Roman, 795 F.3d 511, 516 (6th Cir. 2015) (quoting Salinas v. United States, 522 U.S. 52, 57 (1997)). But here, the precise meaning of § 922(g)(5) is not unambiguous, at least as applied in the deferred action context.^[3] On the one hand, “illegally or unlawfully in the United States” could be read to apply to all individuals without any form of legal immigration status. Alternately, it could be read to exclude from its ambit those individuals who are considered lawfully present, even if they lack formal legal status. Based on the plain language alone, either interpretation is reasonable. Under the latter interpretation, the statutory prohibition would arguably not apply to DACA recipients, who the Department of Homeland Security and USCIS consider to be “lawfully present during the period deferred action is in effect.” USCIS, Frequently Asked Questions (Archived), https://www.uscis.gov/archive/frequently-asked-questions (last visited Nov. 30, 2017).

         The statute does not provide a definition for the contested phrase, and the legislative history provides few, if any, clues as to Congress's intent regarding either its interpretation or its application in the deferred action context. See United States v. Lopez-Perera, 438 F.3d 932, 933-34 (9th Cir. 2006) (discussing legislative silence as to the meaning of “illegally or unlawfully in the United States”). The fact that DACA is an executive policy, and not a Congressional enactment, does not automatically mean that Congress did not consider the potential impact of the statute on deferred action recipients. After all, deferred action has been a part of immigration policy for more than four decades, ^[4] and Congress has at least implicitly approved similar administrative programs.^[5]

         When the precise meaning of a statute is unclear, a court can look to numerous sources for guidance, including the broader statutory context and interpretations by the agency tasked with enforcing that statute. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); Terrell v. United States, 564 F.3d 442, 449 (6th Cir. 2009). Turning first to the statutory context, the Court notes that numerous cross-references to immigration law and INA definitions are found throughout the statute, including in the subsections immediately surrounding § 922(g)(5)(A). See, e.g., 18 U.S.C. §§ 922(g)(B) (cross-referencing section 101(a)(26) of the INA for the definition of a “nonimmigrant visa”), 922(y) (stating that “alien” in this section and in subsection (d)(5)(B) has the same meaning as in section 101(a)(3) of the INA). But, as Mr. Lopez points out, Congress could easily have added language in § 922(g)(5) directing readers to interpret that particular subsection in light of INA definitions, as well. As the Supreme Court has stated, “when Congress includes particular language in one section of a statute but omits it in another-let alone in the very next provision-this Court presumes that Congress intended a difference in meaning.” Loughrin v. United States, 134 S.Ct. 2384, 2390 (2014) (citing other sources) (cleaned up). That meaning, however, must still be discerned.

         The Bureau of Alcohol, Tobacco, and Firearms (BATF)-the agency charged with administering the statute^[6]-tackled this very issue in 1997. After assisting Congress in crafting the statute, ^[7] the BATF promulgated a regulation defining the categories of prohibited persons under § 922(g), including what it means to be “illegally or unlawfully in the United States”:

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);

(b) Who is a nonimmigrant and whose authorized period of stay has expired or who has violated the terms of the nonimmigrant category in which he or she was admitted;

(c) Paroled under INA section 212(d)(5) whose authorized period of parole has expired or whose parole status has been terminated; or

(d) Under an order of deportation, exclusion, or removal, or under an order to depart the United States voluntarily, whether or not he ...