United States District Court, E.D. Tennessee, Greeneville Division
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 ...