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U.S. v. REVUELTA

June 13, 2000

UNITED STATES OF AMERICA, PLAINTIFF,
V.
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 dismiss.

I

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 approved.

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.

II

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 relevant statutes.

III

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 922(a)(6).

A

Defendant relies upon three cases to support ...


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