United States District Court, D. Maryland, Southern Division
W. Grimm United States District Judge.
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. Â§ 1101(a)(27)(J).
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).
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.
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.
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).
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).
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.
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.
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.
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).
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).
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 ...