United States v. Balde, 927 F.3d 71

Souleymane Balde, a Guinean national, applied to adjust status in 2005 but missed his USCIS interview and had his advance parole revoked; he returned to the U.S. in March 2006 and was detained as seeking admission.
An immigration judge ordered Balde removed; the BIA dismissed his appeals and the removal order became final after remand and subsequent BIA denial in 2008, but deportation could not be effectuated due to passport issues.
While under a final removal order and supervised release (ISAP), Balde fired a gun in December 2015; police arrested him and found a revolver and ammunition.
A grand jury indicted Balde under 18 U.S.C. § 922(g)(5)(A) for unlawful possession of a firearm by an alien illegally or unlawfully in the United States; he pleaded guilty while preserving the right to appeal denial of his pretrial motion to dismiss.
On appeal Balde argued (1) “in the United States” requires an immigration-law “entry” (not mere physical presence), and (2) he was not “illegally or unlawfully” present because his supervised release effectively amounted to parole. The Second Circuit rejected both arguments and affirmed.

Issue	Balde's Argument	Government's Argument	Held
Whether “in the United States” in § 922(g)(5)(A) requires an immigration-law “entry” rather than mere physical presence	“In” should be read to require a technical immigration “entry”; absent such an entry, he is not “in” the U.S. for § 922(g)(5)(A)	“In” has its ordinary meaning: physical presence within U.S. borders; Congress could have used technical immigration terms but did not	Court held “in the United States” means physical presence within U.S. borders, not a technical immigration entry
Whether Balde was lawfully present because his release from detention conferred parole or lawful status	Release under ISAP (while appeal/stay was pending) effectively conferred parole or lawful presence, so he was not “illegally or unlawfully” in the U.S.	ISAP/supervised release did not constitute parole under 8 U.S.C. § 1182(d)(5)(A); by the time of the offense he had a final removal order and fell within § 1231(a)(6) supervision — i.e., unlawfully present	Court held his supervised release did not amount to parole; by the time of the conduct he was unlawfully present under a final removal order and therefore covered by § 922(g)(5)(A)

Dobrova v. Holder, 607 F.3d 297 (2d Cir.) (statutory interpretation starts with plain meaning)
Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560 (2012) (dictionary aids in statutory interpretation)
United States v. Lopez-Perera, 438 F.3d 932 (9th Cir.) (held § 922(g)(5)(A) inapplicable where defendant never effected an immigration "entry")
Abramski v. United States, 573 U.S. 169 (2014) (courts should not defer to agency interpretations of criminal statutes)
Zadvydas v. Davis, 533 U.S. 678 (2001) (limits on prolonged post-removal-period detention)