United States District Court, Northern District of California
June 13, 2000
UNITED STATES OF AMERICA, PLAINTIFF,
FERMIN REVUELTA, DEFENDANT
The opinion of the court was delivered by: Legge, District Judge.
ORDER ON DEFENDANT'S
MOTION TO DISMISS
NOW before the court is defendant Fermin Revuelta's motion to dismiss
counts one through three of the superseding indictment.
The superseding indictment contains five counts. The first charges that
defendant was an illegal alien in possession of a gun. Counts two and
three charge that defendant made false statements, regarding his alien
status, in the acquisition of a gun. Defendant now seeks to dismiss those
three counts, arguing that he was not an illegal alien. Defendant does
not now challenge counts four and five, charging conspiracy and attempt
to export firearms.
The issues have been briefed by the parties. Oral arguments were held
and the motion was submitted. The court has reviewed the moving and
opposing papers, supplemental briefs, the record filed in support and
opposition, the parties' arguments, and the applicable authorities. For
the reasons discussed below, the court denies defendant's motion to
In November 1992 defendant entered the United States illegally from
Mexico. Defendant married Maria de los Angeles Galvez in California on
June 3, 1993. On July 29, 1993 defendant's wife filed an immigrant visa
petition (INS Form 1-130) claiming defendant as beneficiary. That visa
petition stated that defendant had entered the United States illegally
("Entered Without Inspection" or "EWI") in November 1992. The petition
noted that defendant would apply for a visa after the petition was
The INS approved Mrs. Revuelta's petition on September 2, 1993 and
assigned defendant a "C21 classification," specifying defendant as the
spouse of a lawful permanent resident based upon a marriage of less than
two years. The visa petition was assigned a priority date of July 29,
1993. The priority date would be "published" sometime thereafter. Under
the regulations, defendant could not apply for an immigrant visa until
the Department of State Visa Bulletin on Availability of Immigrant Visa
Numbers published the date. It takes several years for the INS to publish
a date if the immigrant is prom an oversubscribed country such as Mexico
because Congress has limited the annual number of immigrants who can
change their status. The Visa Bulletin did not publish defendant's date
until April 1999.
On January 10, 1996, defendant purchased a pistol. On the ATF form that
defendant filled out when he purchased this gun (the form and responses
were in Spanish), he answered "No" to the question "Are you an alien
illegally in the United States?" On that same date defendant purchased
another pistol, and again answered on the ATF form "No" to the question
"Are you an alien illegally in the United States?" These events occurred
three years before defendant's priority date was published.
On April 12, 1999 the grand jury returned a three count indictment
against defendant, charging him with knowing possession of a handgun as
an illegal alien, in violation of 18 U.S.C. § 922 (g)(5), and two
counts of knowingly misrepresenting his alien status on the ATF forms, in
violation of 18 U.S.C. § 922 (a)(6). On July 19, 1999 the grand jury
returned the present five count superseding indictment against defendant
and his alleged coconspirator. The first three charges are identical to
the April 12, 1999 indictment. Court four charges both defendant and a
coconspirator with conspiracy to export firearms in violation of
18 U.S.C. § 371, and count five charges both defendant and a
coconspirator with exporting firearms, in violation of 22 U.S.C. § 2278
(b) and (c).
On April 22, 1999 defendant was taken into INS administrative custody,
and was subsequently released on bond. The INS served defendant with a
Notice to Appear, alleging that he was subject to removal on that date.
On May 22, 1999 defendant took the next step in obtaining lawful
residency status in the United States. He filed an INS Form 1-485,
Application to Register Permanent Residence or Adjust Status seeking
permanent resident status, based on his marriage and the then availability
of an immigrant visa application. To repeat, defendant's immigration visa
application became available to him in April 1999 when the INS published
his priority date of July 29, 1993. Defendant's Form 1-485 application
has been suspended until this case is resolved.
On September 10, 1999 defendant appeared at the INS hearing. He
admitted that he was not a native or citizen of the United States and
that he had entered this country illegally from Mexico. He also conceded
that he was removable, and indicated that Mexico would serve as his
designated country. Defendant subsequently moved to terminate the INS
removal proceedings; the motion was denied on March 30, 2000.
Defendant makes two arguments in support of his motion to dismiss
counts one through three of the superseding indictment. The arguments are
based on the factual record recited above, regarding defendant's status
in the United States.
Defendant's first argument is that case law compels the conclusion that
he was not an "illegal alien" at the time he purchased the firearms and
signed the ATF forms, and thus he did not violate 18 U.S.C. § 922
(g)(5) (1999) or 18 U.S.C. § 922 (a)(6) (1999). Second, defendant
argues that the INS Operating Instructions also compel the conclusion
that defendant was not an "illegal alien" at the time he purchased the
firearms and signed the ATF forms.
For the reasons discussed below, the court disagrees. The applicable
statutes and their legislative history compel the conclusion that
defendant was an alien without authorization to be in the United States
at the time of the acts charged, and he is thus chargeable under the
18 U.S.C. § 922 (g)(5) forbids an alien "illegally or unlawfully in
the United States" from possessing a firearm. 18 U.S.C. § 922 (a)(6)
provides that it is unlawful for any person to make "any false, fictitious
oral or written statement" in connection with the acquisition of a
firearm. Those statutes do not define when an alien is "illegally or
unlawfully" in the United States. Nor are those terms defined by the
Immigration and Nationality Act. That act defines only an "alien". See
8 U.S.C. § 1101 (a)(3) (1999).
Defendant argues that because he had taken all of the steps required of
him to secure his status as a permanent and lawful resident of this
country, he was not an illegal alien at the time he purchased the
firearms. Thus, he could not be charged under section 922(g)(5), and he
did not make knowingly false statements in violation of section
Defendant relies upon three cases to support his arguments:
In United States v. Igbatayo, 764 F.2d 1039, 1040 (5th Cir. 1985) (per
curiam), the defendant was a Nigerian national admitted to the United
States in 1981 on a student non-immigrant status. That status was to
continue until December 1984, and was conditioned on the requirement that
he pursue a full course of study. After receiving his degree, defendant
did not re-enroll as a full-time student, but remained in the United
States. In February 1984, the defendant ordered a rifle from a
federally licensed firearms dealer. In connection with that purchase he
completed an ATF form, and answered in the negative the question whether
he was an alien "illegally in the United States." In May 1984 an
immigration judge ordered defendant's deportation, as a result of his
failure to maintain his student status as required by his visa. The
defendant was also charged for violating 18 U.S.C. § 922 (a)(6), for
knowingly making a false statement on the ATF form.
The only issue that the defendant raised on appeal was whether he was
an "illegal alien" prior to the date that he was actually ordered
deported. That is, if he was not an illegal alien in February 1984, then
he did not make a knowingly false statement on the ATF form. He argued
that because he had prior authorization to be in this country, he was not
"illegal", but instead was merely deportable. The court disagreed:
This argument is not convincing. Although the
Immigration and Nationality Act, 8 U.S.C. § 1101
et seq., does not define the term "illegal alien," it
is clear that an alien who is in the United States
without authorization is in the country illegally.
After failing to maintain the student status required
by his visa, Igbatayo was without authorization to
remain in this country. He thus was in the same
position legally as the alien who wades across the Rio
Grande or otherwise enters the United States without
Id. at 1040.
In United States v. Hernandez, 913 F.2d 1506, 1513 (10th Cir. 1990),
the defendant was convicted of violating section 922(g)(5). The
defendant argued that he was not in the United States illegally, because
he applied for amnesty after he had purchased the firearm. The Hernandez
To establish that a defendant is illegally in the
United States for purposes of § 922(g)(6) [sic],
the government must prove that the alien was in the
United States without authorization at the time the
firearm was received. . . . Because aliens in the
process of applying for legalization of their
immigration status may not be deported,
8 U.S.C. § 1160 (d) & 1255a(e), they are not
unlawfully in the United States and thereby subject to
prosecution under § 922(a)(6). Consequently, to
be prosecuted under § 922(g)(5), an alien seeking
amnesty under 8 U.S.C. § 1160 or § 1255 must
either receive a firearm before filing an amnesty
application or after such application is denied.
Id. at 1513 (citations omitted). Because the defendant had purchased the
gun before he filed for amnesty, he was illegal at that time and thus
violated the statutes.
Finally, in United States v. Brissett, 720 F. Supp. 90, 90 (S.D.Tex.
1989), the defendant was charged with making a false statement in
connection with the acquisition of a firearm. The indictment alleged that
the defendant represented on the ATF form that he was not an alien
illegally in the United States when he obtained the weapon. See id.
The defendant had entered the United States in September 1985 pursuant
to a visitor's visa. The visa subsequently expired, but defendant did not
depart the country. He married a United States citizen in January 1987.
On April 8, 1987, the defendant and his wife filed a petition for an
alien relative (Form 1-130) and an application for adjustment of status
to permanent resident (Form 1-485) with the INS. See id. at 91. The INS
denied defendant's application for adjustment of status to permanent
resident on July 30, 1987, after he had purchased the firearm.
The court dismissed the indictment "because the defendant had an
application for adjustment of status to permanent resident pending at the
time he obtained the firearm, he was not an alien illegally or unlawfully
in the United States." Id. The court reasoned that
[a]n alien applicant for adjustment of status to
permanent resident is not `without authorization' to
remain in the United States, and thus is not
`illegally' or `unlawfully' in the country within the
criminal statutes invoked in this case. United States
immigration regulations permit an applicant for
adjustment of status to permanent resident under
8 U.S.C. § 1255 (1982 & Supp. IV 1986) to
remain in the country pending disposition of the
application. Under 8 C.F.R. § 274a.12 (1988), an
alien who has filed an application for adjustment of
status to permanent resident may obtain employment
authorization in increments not exceeding one year
while the application is pending. Under INS operations
instruction 242.la(23), an INS district director
ordinarily will not institute deportation proceedings
against an alien applicant for adjustment of status to
permanent resident while the application is reviewed.
Id. (emphasis added).
For purposes of comparison with this case, the key fact in Brissett was
that the defendant had already filed his petition for a change of status
(Form 1-485) before he purchased the firearm. Defendant in the present
case had been named his wife's beneficiary in the 1-130 visa petition.
However, he had not yet filed an application for adjustment of status to
permanent resident (Form 1-485), as had the defendant in Brissett.
Nonetheless, defendant contends that the facts of this case are closer
to the facts in Brissett than those in Igbatayo. Defendant argues that
under the Adjustment Act of 1994, 8 U.S.C. § 1255 (i), Pub. Law
103-317, 108 Stat. 1765, an alien who enters the United States illegally
can file an application for adjustment of status without leaving the
country. That much is true. However, in order to file an 1-485
application, an alien must also prove his eligibility for immediate
issuance of a visa in the form of an approved 1-130 visa petition, and
show that the Priority Date assigned in the 1-130 petition had been
published in the Visa Bulletin. See 8 C.F.R. § 245.2 (a)(2)(I)
(emphasis added). Defendant concedes that he did not meet the latter
requirement, but he contends that it was only a ministerial requirement
that was not within his power. He argues that because he had completed
all of the requirements that he could control to receive an adjustment of
his status, the court should consider him as the defendant in Brissett, a
legal resident. This argument, however, runs afoul of Ninth Circuit
In Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th
Cir. 1984), the Ninth Circuit held that there is a substantive difference
between a visa petition and an actual visa:
It is important to note that a visa petition is not
the same thing as a visa. An approved visa petition is
merely a preliminary step in the visa application
process. lA Gordon & Rosenfeld, Immigration Law
and Procedure § 3.5(j). It does not guarantee
that a visa will be issued, nor does it grant the
alien any right to remain in the United States.
Id. at 1308 (emphasis added); see also United States v. Garcia,
875 F.2d 257
(9th Cir. 1989).
Other circuits agree. See, e.g., Joseph v. Landon, 679 F.2d 113, 115
(7th Cir. 1982):
An initial approval of a visa petition does not alone
give the beneficiary of the petition an immediate
right to an immigrant visa. Rather, the petition is
approved merely because there appears prima facie
evidence of qualification for issuance of the visa.
After initial approval, the alien must satisfy the
standard of admissibility for permanent residents upon
arrival in this country or upon application for a
change of status while within the country. As we held
in De Figueroa [v. INS, 501 F.2d 191 (7th Cir.
1974)], the initial approval of a petition does not
give an alien an immediate right to a visa.
See also United States v. Bazargan, 992 F.2d 844
(8th Cir. 1993).
Thus, there is a significant difference between the filing of a visa
petition and the receipt of an actual visa. Defendant in this case, at the
time he purchased the firearm and filled out the ATF forms, did not have
the ability to file an 1-485 to change his status because his date had
not yet been published. He was required to wait until his priority date
had been published by the INS. Unlike the defendant in Brissett,
defendant here had not and could not take the final step in the process,
the filing of his status change documents (I-485).
Two INS Operating Instructions also support this conclusion.
Section 242.la(23) provides:
See OI 245.1(a) before issuing an order to show cause
against an alien who may be eligible for adjustment of
status. Pending final adjudication of a petition which
has been filed, the district director will not
deport, or institute proceedings against, the
beneficiary of the petition if approval of the
petition would make the beneficiary immediately
eligible for adjustment of status under § 245 of
the Act . . .
And section 245.1(a) provides that:
An otherwise eligible alien who is unlawfully in the
United States and who has not heretofore filed a
section 245 application shall normally be afforded an
opportunity to file such an application prior to the
institution of deportation proceedings. An application
filed under section 245 may be filed concurrently with
a visa petition Form 1-130 or I-140 if approval of the
visa petition would make a visa immediately
Defendant contends that these regulations demonstrate that the INS
considers aliens in his position to be lawfully in the country and not
deportable as illegal aliens. Defendant argues that he was, at the time
he purchased the firearms, "immediately eligible for adjustment status"
under section 242.la(23), and thus, the district director could not
The director of this district of the INS, the agency charged with
carrying out these regulations, disagrees. The United States has provided
the court with a declaration from the INS that defendant is incorrectly
interpreting these regulations. The declaration also provides the court
with the interpretation of the regulations by the INS. According to the
Operating Instruction 242.la(23) sets forth the INS
policy against deporting and instituting deportation
proceedings against aliens who have filed a Form I-130
visa petition if approval of that visa petition would
make the alien `immediately eligible' to adjust his
status. It is my interpretation . . . that an alien is
`immediately eligible' to adjust his status only if
his immigrant visa is `immediately available.' In
other words, this shield against deportation and
proceedings applies only to aliens who have a visa
`immediately available.' The phrase `immediately
eligible' does not refer to an alien whose visa
petition has been approved, but whose priority date
has not been published. Rather, it refers to an alien
for whom an immigrant visa was immediately available.
. . . In the case of an alien who, like Fermin
Revuelta, was the beneficiary of an approved visa
petition filed by an LPR but who could not apply for
adjustment of status because his priority date was not
yet current, OI 242.la(23) does not, and did not, bar
deportation or the institution cf. proceedings. This
was the interpretation current in the San Francisco
District . . . including the period [in which the
events occurred in this case].
"[T]he question for the court is whether the agency's answer is based
on a permissible construction of the [regulation]."
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837
, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Defendant
advances what he considers to be a more reasonable interpretation of the
regulations, instead of deferring to the interpretation proffered by the
INS. To do so is inappropriate under Chevron. As the Ninth Circuit has
held, the court need not conclude that the agency's interpretation of the
guideline is "the only reasonable one, or even the `best' one." Queen of
Angels/Hollywood Presbyterian Med. Ctr. v. Shalala, 65 F.3d 1472
(9th Cir. 1995). The court need only conclude that it is a "permissible"
one. Good Samaritan Hosp. v. Shalala 508 U.S. 402, 414, 113 S.Ct. 2151,
124 L.Ed.2d 368 (1993).
Indeed, the interpretation of the regulation proffered by the INS is
reasonable. First, it is consistent with Ninth Circuit case law holding
that a visa petition is qualitatively different from a visa: the latter
ensures an alien's right to be here legally, whereas the former only
gives the alien the opportunity to seek a visa. See Tongatapu, 736 F.2d
at 1308. Second, in cases such as this, where it took more than five
years to publish a date, it is more consistent with the Congressional
mandate that an alien not be considered lawfully present in the United
States until his date is published by the Visa Bulletin. Otherwise,
Congress' intent to limit the number of aliens who can change their
status yearly would be compromised.
Section 242.1a(23) and 245.1(a) instruct the director not to deport
the beneficiary of an 1-130 petition only if approval of the petition
would make the beneficiary immediately eligible for adjustment.
Defendant, however, was not immediately eligible for adjustment at the
time he purchased the firearms. He still needed to wait until his
priority date was published and his form 1-485 was filed and considered.
Should these criminal charges against this defendant depend upon such a
parsing of the immigration statutes and regulations? That is, are the
objectives of these criminal statutes consistent with such a method of
analysis? The court has reviewed the legislative history of the statutes
with these questions in mind.
Section 922(g)(5) was enacted in 1968 as part of Title VII of the
Omnibus Crime Control and Safe Streets Act ("the Act"). Congress passed
the Act in response to the perceived violence that had swept through the
United States, highlighted by the murders of Martin Luther King, Jr. and
Senator Robert Kennedy. See Huddleston v. United States, 415 U.S. 814,
825, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974).
The United States Supreme Court in Scarborough v. United States
scrutinized the legislative history, and concluded that the Act "was a
last-minute amendment . . . enacted hastily with little discussion and no
hearings." 431 U.S. 563, 569, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977).
Although it was hastily enacted, the Supreme Court noted that the
legislative history nevertheless demonstrated that Congress "sought to
rule broadly-to keep guns out of the hands of those who have demonstrated
that `they may not be trusted to possess a firearm without becoming a
threat to society.'" Scarborough, 431 U.S. at 572, 97 S.Ct. 1963; see
also Stevens v. United States, 440 F.2d 144 (6th Cir. 1971) (republishing
the legislative history of the Act).
The sponsor of the bill, Senator Long of Louisiana, stated that the Act
was designed to prohibit, inter alia, "an alien . . . illegally in the
United States . . . [from] carrying firearms. He is one who should not be
trusted to carry firearms." 114 Cong. Rec. 13, 867-69 (1968); see also
United States v. Verrecchia, 196 F.3d 294, 300 (1st Cir. 1999). Many of
the Senators in support of the legislation made similar comments about
the purpose of the bill.
The Second Circuit, in United States v. Toner, analyzed the legislative
history of the Act, and summarized the reasoning behind its enactment:
Illegal aliens are aliens who have already violated a
law of this country. They are subject to deportation.
See 8 U.S.C. § 1251 (a)(9). Moreover, illegal
aliens are those who . . . `[are] likely to maintain
no permanent address in this country, elude detection
through an assumed identity, and — already
living outside the law — resort to illegal
activities to maintain a livelihood . . . [O]ne
seeking to arrange an assassination would be
especially eager to hire someone who had little
commitment to this nation's political institutions and
who could disappear afterwards without a trace. . . .'
Toner, 728 F.2d 115, 128-29 (2d Cir. 1984) (citations omitted) (emphasis
That language is not specifically applicable to this defendant in the
circumstances of this case. But the court must conclude, based on the
legislative history, that Congress intended to set forth a bright-line
rule: those individuals who were not yet legally in this country should
not purchase firearms. Those individuals, according to Congress, are in
the aggregate more likely to commit crimes involving firearms, and are
also harder to track because they are less likely to have permanent
residences and as a result, can more easily evade the law. In other
words, the Act was broadly intended to prohibit the possession of
firearms by all those individuals who were not legally in this country.
The legislative history of section 922(a)(6) reflects the same
concerns. See United States v. Pricepaul, 540 F.2d 417, 420 (9th Cir.
1976) ("The legislative history of Title IV, of which 18 U.S.C. § 922
(a)(6) is a part, demonstrates a similar purpose" to the history of
§ 922(g)(5).). In fact, the United States Supreme Court in
Huddleston, 415 U.S. at 824-25, 94 S.Ct. 1262, noted:
Section 922(a)(6) . . . was enacted as a means of
providing adequate and truthful information about
firearms transactions. Information drawn from records
kept by dealers was a prime guarantee of the Act's
effectiveness in keeping `these lethal weapons out of
the hands of . . . persons whose possession of them is
too high a price in danger to us all to allow.' 114
Cong. Rec. 13219 (1968) (remarks of Sen. Tydings).
That legislative intention is consistent with the interpretation of the
immigration statutes and regulation discussed above, and with the
The court therefore DENIES defendant's motion to dismiss counts one
through three of the superseding indictment.
There will be a status and trial setting conference on June 30 2000, at
IT IS SO ORDERED.
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