Opinion
No. CR00-4026-MWB
July 13, 2000.
REPORT AND RECOMMENDATION ON MOTION TO DISMISS
I. INTRODUCTION
Gabriel Monzon-Pos ("Monzon") was indicted on March 8, 2000, on a charge that he was an alien in possession of a firearm while illegally and unlawfully in the United States. (Doc. No. 7) On May 22, 2000, Monzon filed a motion to dismiss the indictment (Doc. No. 25) and a supporting brief (Doc. No. 26). The plaintiff ("the Government") filed a resistance to the motion on June 7, 2000 (Doc. No. 29). On June 29, 2000, the defendant filed an addendum to his brief (Doc. No. 32).
The court held a hearing on Monzon's Motion to Dismiss on July 11, 2000. Monzon appeared in person and with his counsel, Robert L. Sikma. The Government was represented by Assistant United States Attorney Peter E. Deegan, Jr. No witnesses were called at the hearing. The Government offered into evidence, without objection, two exhibits: Exhibit 1, Immigration and Naturalization Service (INS) Operation Instructions; and Exhibit 2, a transcript of an earlier hearing held in this case on March 1, 2000. Monzon offered into evidence, without objection, Exhibit A, his INS file. The court heard the arguments of counsel, and considers the matter fully submitted.
II. FINDINGS OF FACT
Monzon was born in Guatemala on May 14, 1970. He unlawfully entered the United States at an unknown location and on an unknown date (apparently sometime in June 1994). In immigration law parlance, his entry was "without inspection," meaning he entered the United States without legally having been admitted by an immigration officer.
In the March 1, 2000, hearing, INS Agent Nelson testified Monzon "either crossed at a point not designated, or when he came through the point of entry, he claimed to be somebody else or false[ly] claimed to be a citizen." (Gov't Ex. 2 at 10-11.)
On May 13, 1997, in Elk Point, South Dakota, Monzon married Iris Garcia, a United States citizen. On September 10, 1997, Monzon and his wife signed a number of INS forms, apparently with the assistance of a Sioux City, Iowa, attorney, James Mark Rocklin. These forms then were delivered to the INS. The forms included the following:
1. Mrs. Monzon signed a form I-130, entitled "Petition for Alien Relative," requesting the INS to verify the lawfulness of her marriage to Monzon. (Def's Ex. A, pp. 15, 17) In the form, Mrs. Monzon confirmed Monzon last arrived in the United States "without inspection," and stated he would apply for "adjustment of status to that of a lawful permanent resident" at the INS office in Omaha, Nebraska. Mrs. Monzon also provided the INS with Monzon's address in Sioux City, Iowa.
2. Monzon signed an application to adjust status, form I-485 (Def's Ex. A, pp. 7-13), asking the INS for adjustment to permanent resident status because ". . . a relative . . . visa petition filed with this application will give me an immediately available visa number if approved." (Def's Ex. A, p. 8) In Supplement A to the form, he acknowledged he owed the $130 fee required with form I-485 and the $650 fee required by 8 U.S.C. § 1255(i), and confirmed that he last entered the United States "without inspection." (Def's Ex. A, p. 11-12) The application is stamped as received by the Omaha INS office on November 4, 1997.
3. Mrs. Monzon signed an affidavit of support promising to support Monzon during their marriage. (Def's Ex. A, p. 20)
4. Both Monzon and his wife submitted biographical information forms in support of Monzon's application for status as permanent resident. (Def's Ex. A, pp. 21, 28)
5. Monzon signed an application for employment authorization, form I-765. (Def's Ex. A, pp. 44-45) On the form, Monzon again confirmed that he last entered the United States "without inspection." He also indicated, "I have filed an application for adjustment of status to lawful permanent resident status and the application is pending."
The following language is in the instructions to form I-485, Supplement A:
Section 245(i) of the [Immigration and Nationality] Act [ 8 U.S.C. § 1255(i)] temporarily lifts certain restrictions on eligibility for adjustment of status to that of a lawful permanent resident of the United States. It allows an otherwise eligible applicant to adjust status under section 245 of the Act without regard to manner of entry into the United States and without regard to most immigration status violations. The applicant may be required to pay an additional sum when applying under this provision.
The statute to which the instructions refer, 8 U.S.C. § 1255(i), provides:
(i) Adjustment of status of certain aliens physically present in United States
(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States —
(A) who —
(i) entered the United States without inspection; . . . and
(B) who is the beneficiary . . . of —
(i) a petition for classification under section 1154 of this title that was filed with the Attorney General on or before January 14, 1998; . . .
may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such application a sum equaling $1,000 [$650 on September 10, 1997] as of the date of receipt of the application, . . .
(2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if —
(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and
(B) an immigrant visa is immediately available to the alien at the time the application is filed.
On January 10, 1998, Monzon's application for employment authorization was granted and he was given a "green card." (Def's Ex. A, p. 45). The employment authorization was renewed on December 8, 1998, and again on December 31, 1999, and remains effective through December 30, 2000. Throughout this time, Monzon repeatedly provided the INS with address information for his wife and himself.
On February 9, 2000, federal and state agents of the Drug Task Force obtained a search warrant and searched Monzon's place of business, an auto repair shop in Sioux City, Iowa. During the search, agents found a firearm in Monzon's desk drawer, which he acknowledged belonged to him.
III. LEGAL ANALYSIS
Monzon asks the court to dismiss the indictment, arguing that he was not unlawfully or illegally in the United States on February 9, 2000, and therefore was not a person prohibited from possessing a firearm under 18 U.S.C. § 922(g)(5)(A). At first blush, it seems obvious that if the INS knew Monzon was living in the United States, knew where he was living at all times, took no action to deport him, processed a form to confirm his marriage to a United States citizen, actively considered his application for permanent resident alien status in the United States, and granted him a permit to work in the United States, he could not be in the United States unlawfully or illegally, even if he originally entered the United States unlawfully. The law is not so clear, however.
"(g) It shall be unlawful for any person —
* * *
(5) who, being an alien —
(A) is illegally or unlawfully in the United States; . . .
* * *
to ship or transport . . . or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
In United States v. Igbatayo, 764 F.2d 1039 (5th Cir.), cert. denied, 474 U.S. 862, 106 S.Ct. 177, 88 L.Ed.2d 147 (1985), the court was faced with a similar situation. Igbatayo, a Nigerian national, was admitted to the United States on a student non-immigrant status. When he completed his schooling, he remained in the United States without authorization. He then purchased a rifle from a federally-licensed firearms dealer. On a federal form required for the purchase of the rifle, Igbatayo answered that he was not illegally in the United States. A few months later, an immigration judge ordered Igbatayo's deportation as a result of his failure to maintain his student status. Igbatayo then was indicted and convicted for providing false information on the federal form in violation of 18 U.S.C. § 922(a)(6).
The issue in the case was whether Igbatayo was an "illegal alien" when he filled out the form. Igbatayo argued that although he was "deportable" under 8 U.S.C. § 1251(a)(9), he was not "illegal" for purposes of federal firearms laws. The court rejected this argument, holding that although the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., does not define the term "illegal alien," "it is clear that an alien who is in the United States without authorization is in the country illegally." Igbatayo, 764 F.2d at 1040. The court observed that by failing to maintain the student status required by his visa and then remaining in the country without authorization, Igbatayo "was in the same position legally as the alien who wades across the Rio Grande or otherwise enters the United States without permission." Id. Applying this principle to the present case, unless Monzon had authorization to remain in the United States when he was found in possession of the firearm on February 9, 2000, he was an "illegal alien" at that time.
In United States v. Garcia, 875 F.2d 257 (9th Cir. 1989), the defendant was convicted of unlawful possession of a firearm under 18 U.S.C. § 922(g)(5). Garcia admitted he had entered the United States illegally and he did not apply for legal status until after he purchased the firearm. However, at trial he asked the district court to instruct the jury to find that he was not an "illegal alien" when he purchased the firearm if the jury found he was in the country at that time with the INS's knowledge. The district court refused to give the requested instruction, and the Ninth Circuit Court of Appeals agreed, holding, "At the time Garcia possessed the firearm he had not applied for legal status, and had admittedly entered the country illegally. Under these circumstances, he was `illegally or unlawfully in the United States' for purposes of [ 18 U.S.C. § 922(g)(5)]." Garcia, 875 F.2d at 257-58.
Similarly, it is clear the INS's knowledge that Monzon was in the United States does not, by itself, establish that he was in the country legally. See United States v. Rhaburn, 2 F.3d 1159 (Table), 1993 WL 304426 (9th Cir. 1993) (INS knowledge that an alien is in United States does not render alien's presence in the country lawful.) However, because Monzon had applied for legal status prior to the time he was found in possession of the firearm, Garcia arguably supports his argument that he was not an "illegal" alien when he possessed the firearm. See United States v. Hernandez, 913 F.2d 1506, 1513-14 (10th Cir. 1990); United States v. Brissett, 720 F. Supp. 90, 91 (S.D.Tex. 1989).
In this unpublished decision, the Ninth Circuit ruled that an illegal alien was not lawfully in the United States simply because he was released on his own recognizance pending the outcome of his yet-to-be-scheduled deportation hearing. United States v. Rhaburn, 2 F.3d 1159 (Table), 1993 WL 304426 (9th Cir. 1993).
Brissett is almost on all fours with the present case. Brissett entered the United States on a visitor's visa, but did not depart the country when the visa expired. As a result, he became an alien illegally in the United States. He then married a United States citizen. As in the present case, Brissett and his wife filed with the INS a petition for alien relative, form I-130, and an application seeking adjustment of Brissett's status to permanent resident, form I-485. Eventually, the INS denied Brissett's application for adjustment of status. Three weeks before the denial, Brissett acquired a firearm.
Brissett was indicted, inter alia, for violating 18 U.S.C. § 922(g)(5). The district court dismissed the indictment, holding Brissett was not an alien illegally or unlawfully in the United States because, as in the present case, he had an application for adjustment of his status pending before the INS at the time he obtained the firearm. The court distinguished Igbatayo by noting the defendant in that case was "without authorization" to remain in the country, while Brissett, as an applicant for adjustment of status, was not "without authorization" to remain in the United States. Brissett, 720 F. Supp. at 91.
The court observed that INS regulations permit an applicant for adjustment to permanent resident status to remain in the country and work at a job pending disposition of the application.
8 C.F.R. § 274a provides:
(a) Aliens authorized employment incident to status.
. . . the following classes of aliens are authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes . . .
* * *
(12) An alien granted Temporary Protected Status under section 244 of the Act for the period of time in that status, as evidenced by an employment authorization document issued by the Service; . . .
The court further noted that under INS operations instruction 242.1a(23), an INS district director will not, except in limited circumstances not applicable to the case, institute deportation proceedings against an alien applicant for adjustment of status to permanent resident while the application is being reviewed. Brissett, 720 F. Supp. at 91. In sum, the court held because INS regulations contemplate that a person awaiting disposition of an application to adjust status will remain in the United States pending disposition of the application, such a person is not in the country illegally. This is direct authority supporting Monzon's motion to dismiss.
The Government has questioned the authority of Brissett by arguing that the basic premise of the case — an alien with a pending application for adjustment of status is generally not subject to deportation — is obsolete. (Doc. No. 29, p. 9) First, the Government points out that INS operations instruction 242.1a(23) was "removed" by the INS on June 24, 1997. In addition, the Government argues 8 C.F.R. § 274a(a)(12) "merely provides a procedure for obtaining a work authorization; a procedure which the Eighth Circuit has specifically found not to be tantamount to a legalization of status." (Doc. No. 29, p. 10, citing United States v. Bazargan, 992 F.2d 844, 849 (8th Cir. 1993)).
The issue considered by the Bazargan court was earlier considered in United States v. Hernandez, 913 F.2d 1506 (10th Cir. 1990). In Hernandez, the defendant was found to be in possession of a firearm and charged with a violation of 18 U.S.C. § 922(g)(5). Hernandez admitted he was an illegal alien, but contended that because he had applied for amnesty either as a temporary agricultural worker under 8 U.S.C. § 1160 or as a permanent resident under 8 U.S.C. § 1255a, he was "legally" in the country. Citing 8 U.S.C. § 1160(d) and 1255a(e), the court noted that aliens applying for legalization of their immigration status may not be deported, and therefore they are lawfully in the United States. Hernandez, 913 F.2d at 1513. The court held that "to be prosecuted under § 922(g)(5), an alien seeking amnesty under 8 U.S.C. § 1160 or 1255 must either receive a firearm before filing an amnesty application or after such application is denied." Id. The court concluded:
This statute provides for a temporary stay of exclusion or deportation and a work authorization for certain applicants who are considered "special agricultural workers."
This statute provides for a temporary stay of exclusion or deportation and a work authorization for certain applicants who entered the United States before January 1, 1982.
Had Hernandez received the pistol after filing his amnesty application, he would not have been illegally in the United States for purposes of § 922(g)(5). However, because Hernandez purchased the gun before seeking amnesty, we must conclude that sufficient evidence supports his conviction under § 922(g)(5).Hernandez, 913 F.2d at 1514. Thus, the court affirmed Hernandez's conviction.
The Eighth Circuit Court of Appeals considered this issue in United States v. Bazargan, 992 F.2d 844 (8th Cir. 1993). As in Igbatayo, the defendant Bazargan had been admitted to the United States on a non-immigrant student visa. He then transferred to a different school without following the INS's mandatory procedures. In May 1989, Bazargan submitted an application to the INS requesting asylum. Pursuant to 8 C.F.R. § 208.7, the INS issued an employment authorization, which expired on May 7, 1991. In the summer of 1989, he transferred to a different school, again without following INS procedures.
On February 5, 1991, an INS agent notified Bazargan that his asylum application had been denied, and served him with an order to show cause why he should not be deported. The agent "explicitly represented to Bazargan that the government considered him to be illegally present in the Unites States." Id., 992 F.2d at 845. On April 8, 1991, Bazargan purchased two pistols from a licensed firearms dealer.
On June 26, 1991, Bazargan was indicted, inter alia, on a charge of being an illegal alien unlawfully in possession of firearms, in violation of 18 U.S.C. § 922(g)(5). Bazargan filed a motion to dismiss the indictment, and the district court stayed its decision on the motion pending the outcome of Bazargan's asylum application. An immigration judge then issued a decision granting Bazargan's request for asylum, but stated in a footnote that Bazargan had become an illegal alien when he transferred schools without following INS procedures. See id., 992 F.2d at 846. The district court then denied the motion to dismiss. A jury found Bazargan guilty of the section 922(g)(5) charge, and he appealed, arguing that he was not an illegal alien at the time he possessed the firearms.
The Eighth Circuit identified the issue in the case as "whether Bazargan was an alien `illegally or unlawfully in the United States' at the time he bought or possessed the firearms." Id., 992 F.2d at 847. The court began its analysis by nothing that Bazargan became an illegal alien subject to deportation when he failed to comply with the school transfer procedures set forth in the INS regulations. Id. The court also noted that a non-immigrant alien student who fails to follow the transfer procedures may apply for reinstatement by following certain other procedures set forth in the INS regulation. Id. The court found Bazargan's admitted failure either to follow the transfer regulations or to apply for reinstatement justified the district court's holding that "Bazargan's status as a nonimmigrant alien F-1 student lawfully in the United States [had] terminated. . . ." Id., 992 F.2d at 848. The Eighth Circuit therefore found Bazargan was "`without authorization to remain in this country,' and `in the same position legally as the alien who wades across the Rio Grande or otherwise enters the United States without permission.'" Id. (citing Igbatayo, 764 F.2d at 1040).
The court then turned its attention to the question of whether the INS's grant of an employment authorization to Bazargan made him a legal alien for purposes of section 922(g)(5). Citing Hernandez, 913 F.2d at 1513, the court observed that in order to convict Bazargan under section 922(g)(5), the Government had to prove Bazargan was in the United States "without authorization" when he received the firearms. Bazargan, 992 F.2d at 848. Bazargan argued that because the employment authorization issued by the INS was effective until May 7, 1991, he was authorized until then to be in the United States. Therefore, he argued, he did not violate section 922(g)(5) when he purchased the pistols on April 8, 1991. Id.
The court noted this was a close question, and then deferred to the interpretation of INS regulations by the immigration judge. This holding is not instructive in the present case, where there is no ruling by the INS to which the court could defer. The Eighth Circuit also noted Bazargan failed to apply for reinstatement before purchasing the pistols, and he consequently "remained in violation of his student status until . . . his petition for asylum was granted." Id. The implication is that if Bazargan had applied for reinstatement and the application had been pending when he purchased the pistols, he would not have been illegally in the country at the time. This observation also is not helpful to the Government's position in the present case.
"The Immigration Judge, in the course of granting Bazargan's petition for asylum, held that Bazargan had been an illegal alien at the time he possessed the firearms and that the application for asylum and the employment authorization had not cured this defect in status. Because we cannot say that this determination was without a rational basis, we uphold the district court's finding that Bazargan was an illegal alien at the time he possessed the firearm." United States v. Bazargan, 992 F.2d 844, 848 (8th Cir. 1993).
The court also commented that it would be contrary to the purposes of the immigration laws to permit the defendant to use one INS regulation, 8 C.F.R. § 208.7 (concerning the issuance of employment authorizations), to defeat another INS regulation, 8 C.F.R. § 214.1(f)(8) (requiring aliens to notify the INS of any school transfers). Id. This argument does not apply to the facts in the present case, where no INS regulation would be defeated by a finding that when Monzon possessed the firearm on February 9, 2000, he was authorized to be in the country for purposes of section 922(g)(5).
The court further noted that the INS is required to grant employment authorizations to any alien who requests one after filing a non-frivolous application for asylum. "Consequently, the grant of an employment authorization is not part of some larger determination by the INS permitting the alien to purchase weapons, regardless of other violations of his status." Bazargan, 992 F.2d at 848. The court concluded:
Because the INS does not interpret the employment authorization to have any effect on the alien's status with respect to anything other than his ability to engage in employment during the pendency of his case, we agree with the district court and the Immigration Judge that the employment authorization did not have the effect of converting Bazargan back into a legal alien.Id.
In the present case, Monzon entered the United States illegally in 1994, and was found to be in possession of a firearm on February 9, 2000. Similarly, Bazargan was illegally in the United States after he violated the INS's non-immigrant student visa requirements. After that, however, the facts of the two cases diverge significantly. After Bazargan became an illegal alien by transferring schools without following INS procedures, he gained status in the United States by applying for asylum and receiving, as a consequence of that application, an INS employment authorization. However, by the time he purchased the two pistols, his application for asylum had been denied, and he had been advised specifically by an INS official that he was illegally present in the United States. His only remaining justification for claiming legal status in the United States was that he held a valid work permit. The Eighth Circuit found this was not enough. This finding does not require the same result in the present case as Monzon's claim of legal status is based on much more solid ground.
More than two years before Monzon possessed the firearm, he applied to the INS for adjustment of his status to lawful permanent resident alien. As a part of the application process, and as required by 8 U.S.C. § 1255(i), the INS collected an extra $650 from Monzon because he originally had entered the country illegally. Then, the INS issued Monzon a permit to work in the United States so that he could support himself and his wife while his application was being processed. The application is still pending. Thus, at the time Monzon was found to be in possession of a firearm on February 9, 2000, he had received implicit authorization from the INS to remain in the United States while his application for permanent residence status was pending, even though he had entered the United States illegally; he had sent an application for such status to the INS; and the INS had granted him authorization to work in the United States while awaiting action on his application. Throughout this process, the INS knew where Monzon lived and corresponded with him on a regular basis about his application.
Under the statute, the INS permits an alien such as Monzon, who entered without inspection, who is physically present in the United States, and who is the beneficiary of a "petition for alien relative," to apply for adjustment of his status to "alien lawfully admitted for permanent residence" upon payment of the additional fee. See 8 U.S.C. § 1255(i), quoted in footnote 2, supra.
Under these circumstances, the court finds, as did the court in Brissett, that Monzon was legally in the United States when he possessed the firearm that is the subject of the indictment in this case. Accordingly, the court finds the indictment should be dismissed.
IV. CONCLUSION
IT IS RECOMMENDED, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), within ten (10) days of the service of a copy of this report and recommendation, that the defendant's Motion to Dismiss Indictment be granted, in accordance with the Court's recommendations set forth above.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 475, 88 L.Ed.2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).
IT IS SO ORDERED.
DATED this 13th day of July, 2000.