Tuesday, March 20, 2007
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Status Petition Did Not Entitle Alien to Possess Gun—Court
By a MetNews Staff Writer
An alien who overstayed his visa could not evade a firearms possession charge applicable to individuals “illegally” or “unlawfully” in the U.S. by asserting that his pending application for adjustment of status prevented his removal from the country, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
U.S. District Judge David A. Ezra of the District of Hawaii properly denied alien Konileti Latu’s motion to dismiss a charge that he violated 18 U.S.C. Sec. 922(g)(5)(A), the court said, affirming Latu’s conviction under that section.
Latu, who entered the country. in October 2002 and was living in Hawaii, was indicted after Maui police officers in May 2004 found him in possession of a handgun that had been manufactured in California and transported in interstate commerce before reaching Hawaii.
At the time the gun was found, Latu’s visa for entry into the U.S. had expired and his July 2003 application for adjustment of status—based on his marriage to a U.S. citizen—was pending and had not been acted upon by the government.
An indictment charged Latu with violating both Sec. 922(g)(5)(A)—which prohibits individuals “illegally or unlawfully in the United States” from possessing a firearm in or affecting commerce—and Sec. 922(g)(5)(B), which similarly bars firearm possession by an alien admitted to the U.S. under a non-immigrant visa.
Latu moved to dismiss both counts, arguing as to the first charge that he was not illegally in the U.S. at the time his weapon was discovered because he had filed a non-frivolous application for adjustment of status and was allowed to remain in the country while that application was pending.
After Ezra denied his motions as to both counts, Latu conditionally pled guilty and preserved his right to challenge the ruling on the dismissal motions.
On appeal, he argued that the holding of United States v. Bravo-Muzquiz, 412 F.3d 1052 (9th Cir. 2005) should be extended to his case. In Bravo-Muzquiz, the Ninth Circuit upheld a jury instruction stating that “an alien who has filed an application for legalization of his immigration status is not illegally or unlawfully in the United States while the application is pending. This is so because an alien is authorized to remain in the United States while the application for legalization is pending.”
But Judge Johnnie B. Rawlinson, writing for the court, said that the court’s holding—based on statutes in effect at the time that precluded removability when specific applications were filed—pertained to limitations on removal proceedings.
“[T]he panel did not envision extending lawful status to aliens who, like Latu, are removable despite having filed an application for legalization of status,” he said.
Noting that Sec. 922 was silent as to the definition of “illegally or unlawfully in the United States,” the court deferred to the Bureau of Alcohol, Tobacco and Firearms’ interpretation of the term. Under an ATF regulation contained in 27 C.F.R. Sec. 478.11(b), Rawlinson pointed out, the term encompasses an alien “[w]ho is a nonimmigrant and whose authorized period of stay has expired.”
The judge observed that ATF’s definition did not foreclose Latu’s contention that his unlawful presence in the U.S. became lawful when he applied for adjustment of status. However, he concluded that “absent a statute preventing Latu’s removability upon the filing of his application for adjustment of status, we can envision no interpretation that renders Latu’s presence anything other than ‘illegal[ ] or unlawful[ ].’”
As to Latu’s Sec. 922(g)(5)(B) conviction, the court reversed on the basis that the government confessed error on that count.
Judges Ferdinand F. Fernandez and William A Fletcher concurred in the opinion.
The case is United States v. Latu, 05-10815.
Copyright 2007, Metropolitan News Company