United States v. Anaya-Acosta
629 F.3d 1091
9th Cir.2011Background
- Anaya-Acosta, a Mexican citizen, entered the United States illegally in 1997.
- ICE issued a departure control order in October 2007 requiring him to remain in the U.S. until revocation.
- Order issued at the request of the Los Angeles Police Department for use as a material witness; he was not detained awaiting trial.
- On May 8, 2009, Anaya-Acosta was arrested for illegal alien in possession of a firearm and ammunition under 18 U.S.C. § 922(g)(5)(A).
- He challenged only the legality of his presence; argued the departure control order made him legally present.
- The district court denied acquittal; a jury convicted him; court relied on ATF regulation 27 C.F.R. § 478.11 to define illegality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of departure control order on illegality | Anaya-Acosta contends status becomes lawful due to order. | Anaya-Acosta argues order cures illegality; status modified. | Departure control order does not affect legality; status remains illegal. |
| ATF regulation controlling § 922(g)(5)(A) | Statute silent; ATF interpretation governs. | Disagreement with ATF interpretation. | ATF interpretation controls; finds presence illegal under regulation. |
| Authority of cited Ninth Circuit cases (Latu, Bravo-Muzquiz) | Cases support argument that status can remain unlawful despite actions. | Cases do not support status being cured by departure control. | Latu and Bravo-Muzquiz reinforce that status remains illegal for § 922(g)(5)(A). |
| Parole-equivalence under 8 U.S.C. § 1182(d)(5) | Departure control could be treated as parole excluding § 478.11. | No authority equates departure control with parole; parole applies to admissions. | Departure control is not parole; § 478.11 not excluded. |
| Disjunctive scope of § 478.11 | Argues departure order may not be captured by subsection (a). | Section (d) covers presence under an order to depart, regardless of leaving. | Under § 478.11(d), presence under a departure order still renders illegality. |
Key Cases Cited
- United States v. Latu, 479 F.3d 1153 (9th Cir. 2007) (status remains illegal under § 922(g)(5)(A) absent contrary statute)
- United States v. Bravo-Muzquiz, 412 F.3d 1052 (9th Cir. 2005) (unlawful presence despite immigration bond pending removal proceedings)
- Lopez-Perera, 438 F.3d 932 (9th Cir. 2006) (entry without inspection; status until parole or removal)
- United States v. Lombera-Valdovinos, 429 F.3d 927 (9th Cir. 2005) (entry status and restraint considerations for unlawful presence)