« Carnival of Cordite No. 18 | Main | Fifth Circuit Commerce Case »

5th Cir. rules on illegal alien as prohibited person

The Fifth Circuit has issued an interesting opinion relating to the status of an illegal alien vis-a-vis the Gun Control Act. United States v. Orellana, 405 F.3d 360 (5th Cir. 2005).

18 U.S.C. § 922(g)(5)(A) makes it unlawful to possess a firearm while being an alien "illegally or unlawfully in the United States." The defendant was a Salvadoran who entered the US illegally. After his entry, El Salvador experienced earthquakes, and the Attorney General used his legal powers to allow Salvadorans to apply for "Temporary Protected Status," where they could remain in the US and seek employment, at least until the TPS was lifted. The defendant applied for and got that status, then found work as a security guard. During an investigation of use of illegals by private security firms, federal agents came across him while he was armed and on duty. He was convicted of illegally possessing the gun and sentenced to 18 months' imprisonment.

The Fifth Circuit found it quite difficult to determine Congressional intent in this situation (the law allowing TPS was enacted long after the Gun Control Act was, and neither statute had any useful legislative history. BATF had promulgated a regulation indicating that an illegal alien who later received TPS was still forbidden to own arms, but the court declined to give much deference to the regulation, noting that the degree of deference given an agency in the setting of a criminal prosecution is uncertain and the agency here had no particular expertise in immigraton law. Finally, it noted that the government itself in another appeal had conceded that ATF regulations were not entitled to deference.

In the end, the court held the situation sufficiently ambiguous to justify the application of the rule of lenity: if a statute can be construed with about equal validity in two different ways, the court should choose the more lenient construction; if Congress wanted the stricter one, it should say so without ambiguity. "After conscientiously applying our circuit's rules of statutory construction, we cannot say with certainty that Congress intended to criminalize the possession of firearms by aliens who have been granted temporary protected status. It may be sound policy, but as such its wisdom has no call upon the judicial power. When Congress does unambiguously render conduct illegal through appropriate legislation, it is not our task to offer supplementary and clarifying amendments."

· prohibitted persons