United States v. Granados-Alvarado

• Decision Date: 16 October 2018
• Docket Number: Criminal No.: 8:17-cr-00514-PWG-1
• Parties: UNITED STATES of America, Plaintiff, v. Mario Aristides GRANADOS-ALVARADO, Defendant.
• Court: U.S. District Court — District of Maryland

350 F.Supp.3d 355

UNITED STATES of America, Plaintiff,

v.Mario Aristides GRANADOS-ALVARADO, Defendant.

Criminal No.: 8:17-cr-00514-PWG-1

United States District Court, D. Maryland, Southern Division.

Signed October 16, 2018

Lindsay Eyler Kaplan, U.S. Attorney's Office, District of Maryland, Greenbelt, MD, for Plaintiff.

Patricia L. Richman, Office of the Federal Public Defender, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

Paul W. Grimm, United States District Judge

Defendant Mario Granados-Alvardo, a citizen and native of El Salvador, has resided in the United States since 2014. Circuit Court Order 1, Mot. to Dismiss Ex. 1, ECF 45-1. He has neither U.S. citizenship nor lawful permanent resident status. However, since February 24, 2017, he has enjoyed a range of privileges and protections accompanying his status as a "special immigrant juvenile" under 8 U.S.C. § 1101(a)(27)(J).

Granados-Alvarado is presently under indictment on two federal criminal charges: (1) being an illegal alien in possession of a firearm, 18 U.S.C. § 922(g)(5), and (2) possession of a firearm in a school zone, id. § 922(q)(2)(A). Here, I address his Motion to Dismiss Count I of the Indictment. Mot. to Dismiss, ECF 45. That count requires the Government to prove, among other things, that Granados-Alvarado was "illegally or unlawfully in the United States" at the time of the alleged firearms offenses. See 18 U.S.C. § 922(g)(5)(A). The defense's argument is that Granados-Alvarado's status as a "special immigrant juvenile" (SIJ) shields him from prosecution under 18 U.S.C. § 922(g)(5).

I reject Granados-Alvarado's argument. The SIJ program offers aliens a multitude of benefits and protections, including the opportunity to seek lawful permanent resident status. See 8 U.S.C. § 1255(h). In and of itself, though, an SIJ designation does not strip the U.S. government of all removal powers. Here, at least, the government retained the power to remove Granados-Alvarado in spite of his SIJ status. See 8 U.S.C. § 1182(a)(6) (declaring that aliens who are present in the United States without having been admitted or paroled are "inadmissible" and subject to removal). I conclude, therefore, that Granados-Alvarado's SIJ status does not place him outside the ambit of the federal alien-in-possession-of-a-firearm statute, 18 U.S.C. § 922(g)(5). I further conclude that the rule of lenity does not apply under these circumstances.¹

BACKGROUND

On March 6, 2014, the U.S. Department of Homeland Security ("DHS") formally accused Granados-Alvardo, then 15, of unlawfully crossing the U.S.-Mexican border at the Rio Grande River aboard an inflatable raft. DHS Record 1-3, Resp. Ex. 1, ECF 57-1. DHS promptly initiated removal proceedings, Notice to Appear 1-2, Resp. Ex. 2, ECF No. 57-2, alleging Granados-Alvarado was removable under 8 U.S.C. § 1182(a)(6)(A)(i), which authorizes the removal of aliens "present in the United States without being admitted or paroled." Despite this, authorities later released Granados-Alvarado into the custody of his father, who was residing in Silver Spring, Maryland.

While in Maryland, Granados-Alvarado sought protection through the federal SIJ program, which offers relief to young undocumented immigrants who have suffered "abuse, neglect, abandonment," or similar hardships while in their families' care. See 8 U.S.C. § 1101(a)(27)(J) ; Zheng v. Pogash , 416 F.Supp.2d 550, 558 (S.D. Tex. 2006). SIJ status offers a range of benefits. For starters, SIJ-designated immigrants are eligible to apply for adjustment of status. See 8 U.S.C. § 1255(h) (providing that special immigrants under § 1101(a)(27)(J)"shall be deemed ... to have been paroled" for purposes of the statutory provisions governing adjustment of status, a form of relief that, under § 1255(a), is generally available to aliens who have been "paroled into the United States"). Beyond that, the statutory regime improves special immigrant juveniles' chances of successfully adjusting their status by lifting a number of restrictions that might otherwise frustrate their applications. See § 1255(h)(2) (providing that various grounds of inadmissibility under 8 U.S.C. § 1182(a)"shall not apply" when determining a special immigrant juvenile's admissibility). The regime also casts aside certain grounds for deportation. See 8 U.S.C. § 1227(c).

To qualify for SIJ status, an alien must be unmarried and under 21 years old and must have been "declared dependent upon a juvenile court located in the United States in accordance with state law." 8 C.F.R. § 204.11(c)(1)-(3). The court must deem the juvenile eligible for long-term foster care and must determine that "it would not be in the alien's best interest to be returned to the [alien's] country of nationality or last habitual residence." Id. § 204.11(c)(4)-(6). Even then, the alien does not enjoy SIJ status unless and until DHS consents to it. 8 U.S.C. § 1101(a)(27)(J)(iii).

In Granados-Alvarado's case, a Montgomery County Circuit Court judge issued the requisite findings for SIJ status on May 6, 2016. Circuit Court Order 1-4. On February 24, 2017, the U.S. Citizenship and Immigration Services ("USCIS") issued a Notice of Action approving Granados-Alvarado's petition for SIJ status. USCIS Notice 1, Resp. Ex. 3, ECF No. 57-3. The Notice states in bold, capital letters: "This notice does not grant any immigration status or benefit." Id.

Granados-Alvarado did not wait for USCIS to approve his petition before filing a different form with the agency: a Form I-485 application for adjustment to permanent resident status. Adjustment of Status Form, Resp. Ex. 4, ECF No. 57-4. USCIS marked the form as received on November 1, 2016. Id. at 1. The application remains pending.

On May 1, 2017, roughly two months after USCIS confirmed Granados-Alvardo's SIJ status, a traffic stop in Silver Spring resulted in Granados-Alavardo's arrest. A grand jury handed down the two indictments soon afterward.

STANDARD OF REVIEW

In reviewing a motion to dismiss an indictment, a court must test the indictment "by its sufficiency to charge an offense." United States v. Sampson , 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). "It is perfectly proper, and in fact mandated, that [a] district court dismiss an indictment if the indictment fails to allege facts which constitute a prosecutable offense." United States v. Coia , 719 F.2d 1120, 1123 (11th Cir. 1983) ; see United States v. Shabbir , 64 F.Supp.2d 479, 481 (D. Md. 1999).

DISCUSSION

Count I of the indictment charges Granados-Alvarado with a violation of 18 U.S.C. § 922(g)(5). This statute makes it unlawful for any "alien" who is "illegally or unlawfully in the United States" to possess a firearm that has traveled in interstate commerce. 18 U.S.C. § 922(g)(5). Granados-Alvarado argues that, because of his SIJ status, he is not "illegally or unlawfully in the United States" within the meaning of § 922(g)(5).

The phrase "illegally or unlawfully in the United States" is nowhere defined in the statute. However, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") – the agency charged with enforcing § 922 – has promulgated a definition. In 27 C.F.R. § 478.11, the Bureau states that the term "alien illegally or unlawfully in the United States" refers to aliens who are "not in valid immigrant, nonimmigrant or parole status." 27 C.F.R. § 478.11. The regulation goes on to state that this 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 [ 8 U.S.C. § 1182(d)(5) ] ...

(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 [ 8 U.S.C. § 1182(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 or she has left the United States.

Id.

The defense's Motion to Dismiss argues Granados-Alvarado enjoys "parole status" within the meaning of the ATF regulation. It bases this assertion on a provision within Chapter 5 of the Immigration & Nationality Act ("INA"), which states that aliens with SIJ status "shall be deemed, for purposes of [ 8 U.S.C. § 1255(a) ], to have been paroled into the United States." 8 U.S.C. § 1255(h). The defense argues that, as a result of this provision, Granados-Alvarado was effectively "paroled" when he received SIJ status in February 2017. Consequently, the defense contends, Granados-Alvarado was lawfully present in the United States at the time of his offense and was therefore beyond the reach of the federal alien-in-possession-of-a-firearm statute, 18 U.S.C. § 922(g)(5).

A.

The defense's argument raises a question that neither party's filings address at length. That is, how much deference does this Court owe the ATF's definition of "illegally or lawfully in the United States"? This does not appear to be a settled question. See Whitman v. United States , ––– U.S. ––––, 135 S.Ct. 352, 352-53, 190 L.Ed.2d 381 (2014) (Scalia, J., respecting denial of certiorari) (questioning whether Congress may give executive agencies the power to "resolve ambiguities in criminal legislation"). In fact, among the various appellate courts that have considered whether to defer to ATF's interpretation of the phrase "illegally or unlawfully in the United States," as it appears in § 922(g)(5), conclusions have differed wildly. Compare United States v. Garcia , 707 F. App'x 231, 234 (5th Cir. 2017) (holding that ATF's definition merits no deference), with United States v. Atandi , 376 F.3d 1186, 1189 (10th Cir. 2004) (declining to decide whether ATF's definition qualifies for full deference under Chevron v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), but opting to...