U.S. v. Salman, 603CR15ORL22JGG.

• Decision Date: 29 May 2003
• Docket Number: No. 603CR15ORL22JGG.,603CR15ORL22JGG.
• Citation: 266 F.Supp.2d 1367
• Parties: UNITED STATES of America v. Salman Mohammed SALMAN
• Court: U.S. District Court — Middle District of Florida

266 F.Supp.2d 1367

UNITED STATES of America v. Salman Mohammed SALMAN

No. 603CR15ORL22JGG.

United States District Court, M.D. Florida, Orlando Division.

May 29, 2003.

Mark E. NeJame, NeJame, Harrington & Barker, P.A, Orlando, FL, Salman Mohammed Salman, Palm Bay, FL, for Salman Mohammed Salman (1), Custody, defendant.

Bruce S. Ambrose, U.S. Attorney's Office, Middle District of Florida, Orlando, FL, for U.S. Attorneys.

ORDER

CONWAY, District Judge.

I. INTRODUCTION

This cause comes before the Court for consideration of Defendant Salman Mohammed Salman's Motion to Dismiss for Lack of Jurisdiction (Doc. 32), filed February 27, 2003. The Court held a hearing on the motion on March 27, 2003. When the hearing concluded, the Court directed the parties to file and serve supplemental legal memoranda concerning whether this case should be dismissed or, instead, stayed pending the conclusion of an immigration court hearing scheduled in August 2003. Those briefs have been submitted.

Upon considering Salman's motion to dismiss, the Government's response, the parties' supplemental memoranda and evidentiary submissions, and argument of counsel, the Court determines that the criminal charges against Salman must be dismissed.¹

II. BACKGROUND AND THE PARTIES' POSITIONS

The indictment consists of five counts charging Salman with possession of five different firearms, and a sixth count charging possession of ammunition, by an alien illegally and unlawfully in the United States, in violation of 18 U.S.C. § 922(g)(5) and 924(a)(2).² Section 922(g)(5)(A) criminalizes possession "in or affecting commerce" of a firearm or ammunition by a person "who, being an alien—is illegally or unlawfully in the United States[.]"³ The other statute cited in the indictment, 18 U.S.C. § 924(a)(2), merely prescribes the penalty for violating § 922(g)(5) (a fine and not more than 10 years imprisonment). The indictment alleges that each offense occurred on or about June 28, 2002.

By means of the instant motion to dismiss, Salman contends that, as a matter of law, he was not "illegally or unlawfully in the United States" at the time he allegedly possessed the subject firearms and ammunition. Consequently, he maintains "this Court has no jurisdiction to pr[o]ceed against him on the instant Indictment." Doc. 32, ¶ 7, at 4. Salman further argues that he is among a group of aliens that has been granted until June 2003 to file an application for permanent residency. Accordingly, he challenges this Court's jurisdiction over the instant offenses on the additional basis that he has not yet exhausted his administrative rights concerning adjustment of his alien status.

Salman's position boils down to this: while in this country pursuant to an "F-1" student visa, which entitled him to remain here for the "duration of status" (so long as he remained a student), Salman filed an INS Form 1-687, Application for Status as a Temporary Resident, pursuant to a class-action legalization case then known as League of United Latin Am. Citizens v INS, No. 87-4757, 1989 WL 252578 (C.D.Cal.1989), aff'd sub nom. Catholic Soc. Servs., Inc. v. Thornburgh, 956 F.2d 914 (9th Cir.1992), vacated sub nom. Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) ("LULAC").⁴ As a result of this application, the INS designated Salman as a member of the LULAC class. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which impacted federal courts' jurisdiction over LULAC and similar class actions.⁵ However, Congress later passed the Legal Immigration Family Equity Act of 2000 ("the LIFE Act") so as to permit eligible LULAC class members to apply for permanent residency notwithstanding the impact of the IIRIRA on the class-action litigation. The initial deadline for filing LIFE Act applications was May 31, 2002; the deadline was later extended to June 4, 2003. See 8 C.F.R. § 245a. 11 (a). Salman maintains that because the deadline for him to file a LIFE application remained open at the time he was arrested, his presence in the U.S. was lawful. In that regard, Salman states:

Defendant's presence in the United States was, in fact, clearly authorized during the period when ...⁶ his LLAC application was pending and the class action litigation was still on-going. It is clear that the Government offered LULAC class members, including defendant, the opportunity to file for their permanent residency in an effort to end the years of litigation over an amnesty provision that was signed into law over fifteen (15) years ago. The gap of time between the end of the class action litigation and the end of the application period under the LIFE Act provision [now June 4, 2003] is a time during which this class of aliens, including defendant, can remain in the United States in a period of authorized presence. The LIFE Act contains no requirement that an alien have filed any paperwork with the INS during the "gap period" in order to remain eligible for permanent residency. Rather, the opportunity to file for benefits under the LIFE Act must be interpreted as a continuation of the same claim for residency defendant made in his initial LULAC application.

Motion to Dismiss (Doc. 32), 118, at 4-5 (footnote added).

To support his argument, Salman cites the cases of United States v. Hernandez, 913 F.2d 1506 (10th Cir.1990), cert, denied, 499 U.S. 908, 111 S.Ct. 1111, 113 L.Ed.2d 220 (1991), and United States v. Brissett, 720 F.Supp. 90 (S.D.Tex.1989). Recognizing that aliens in the process of applying for legalization of their immigration status are not deportable, and are therefore not unlawfully in the U.S., the Tenth Circuit held in Hernandez that "to be prosecuted under § 922(g)(5), an alien seeking amnesty ... must either receive a firearm before filing an amnesty application or after such application is denied." 913 F.2d at 1513. Similarly, in Brissett, the district court held that "because the defendant had an application for adjustment of status to permanent resident pending at the time he obtained the firearm, he was not an alien illegally or unlawfully in the United States." 720 F.Supp. at 90. Accordingly, the court dismissed the indictment charging, inter alia, a violation of § 922(g)(5).

In summary, the Government responds as follows:

While LULAC and LIFE Act class members are entitled to certain benefits, such as a stay of removal and written work authorizations, none of those ancillary consequences make them legal aliens authorized to possess firearms. For purposes of 18 U.S.C. 922(g)(5) and the right to possess a firearm, they continue to be "illegally or unlawfully in the United States" until such time, if ever, that they become lawful permanent residents. This is a question of law for determination by the Court.

Even if the Court determines that LULAC and LIFE Act class members are not "illegally or unlawfully in the United States" for purposes of 18 U.S.C. § 922(g)(5), defendant does not belong in either class because his initial Application for Status as a Temporary Resident (INS Form 1-687), was fraudulent. The INS accepted defendant's Form 687 both as an application for class membership, and without challenge, because it was required to do so. A criterion for class membership is entry into the United States before January 1, 1982. Defendant fraudulently stated on his INS Form 1-687 that he first entered the country in August 1981. He was thirteen years old in 1981 and there is no INS record or other record to corroborate defendant's declaration. In fact, defendant did not enter the United States until December 1987 with a student visa. These are questions of fact to be determined by a jury.

Government's Response to Defendant's Motion to Dismiss (Doc. 43), 11111 & 2, at 1-2.

Essentially, the Government contends that Salman's presence in this country became unlawful when he allegedly failed to maintain his student status in 1990. The Government further argues that the act of filing an application for immigration benefits does not make an illegal alien a lawful alien, even though the alien may legally remain in the U.S. pending decision on the application by the INS. Moreover, says the Government, the LIFE Act restriction on removal applies only to those aliens who have actually submitted an application for adjustment. According to the Government, "[m]ere eligibility to file such an application, such as LULAC class membership[,] is, alone, insufficient to restrict removal." Doc. 43 at 12. In that regard, the Government states:

[O]n the date defendant was arrested for unlawfully possessing firearms, June 28, 2002, he did not have a pending application for adjustment of status filed in connection with LIFE Legalization; thus, there was no restriction on removal. Although defendant filed an application for adjustment of status after his arrest, he has since withdrawn it,⁷ and thus there are no current restrictions on removal should the immigration judge order him removed from the United States.⁸ To the extent petitioner argues that his approved 1990 application for Temporary Residence⁹ should be viewed as a "continuing" application for permanent residence, his July 2002 filing of an I-485, application for permanent residence, undercuts his claim. Moreover, with the enactment of the LIFE Act on December 21, 2000, aliens wishing to apply for LIFE Legalization were required to submit a completed Form I-485 to the INS during the application period.

Doc. 43 at 13 (footnotes added; internal citations omitted).¹⁰

The Government maintains that the two cases cited by the Defendant, Hernandez and Brissett, are wrongly decided. It takes the same position with respect to a third case, United States v. Atandi, 228 F.Supp.2d 1285, 1288-90 (D.Utah 2002), in which the district court determined that a defendant charged with violating § 922(g)(5) was not unlawfully in the country because an immigration judge had not...