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United States v. Granandos- Alvarado

United States District Court, D. Maryland, Southern Division

October 16, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MARIO ARISTIDES GRANADOS-ALVARADO, 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 defensess 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 proceeding,, 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 juvenlle 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 1-485 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 (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. Cola, 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 ...

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