UNITED STATES OF AMERICA, Appellee, v. SOULEYMANE BALDE, Defendant-Appellant.
Docket No. 17-3337-cr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
June 13, 2019
August Term, 2018. Argued: November 6, 2018. Decided: June 13, 2019.
Souleymane Balde, a citizen of Guinea, appeals his conviction for one count of unlawful possession of a firearm by an “alien . . . [who] is illegally or unlawfully in the United States,” in violation of
MATTHEW B. LARSEN, Federal Defenders of New York, New York, NY, for Defendant-Appellant Souleymane Balde.
GERARD E. LYNCH, Circuit Judge:
Souleymane Balde pled guilty to one count of unlawful possession of a firearm by an “alien . . . [who] is illegally or unlawfully in the United States,” in violation of
Because we find both arguments unavailing, we AFFIRM the judgment of the district court.
BACKGROUND
Souleymane Balde is a citizen of Guinea. He first arrived in the United States as a child, without lawful immigration status. In May 2005, Balde sought to adjust his status to become a lawful permanent resident, apparently pursuant to the terms of a class action settlement agreement.1 To qualify for adjustment of status, Balde had to be interviewed by the United States Citizenship and Immigration Services (“USCIS“). His interview was originally scheduled for December 1, 2005.
Several months after applying, however, Balde learned that his mother was seriously ill and that unless he traveled to Guinea to visit her soon, he risked missing his last chance to see her alive. He asked his attorney to postpone the interview in order for him to travel abroad. His lawyer told Balde that he would contact USCIS to postpone the interview. The lawyer wrote to USCIS, stating that Balde would be unable to attend his interview due to unforeseen circumstances. Balde also applied for advance parole, a status which allows a noncitizen to travel abroad temporarily and return to the United States without jeopardizing any existing legal status or pending application for immigration relief. USCIS granted advance parole, but did not act on the request to postpone the interview.
Balde did not appear for his scheduled interview, although he did not leave the United States until several weeks after the scheduled interview date and USCIS had not granted an adjournment. On January 27, 2006, while Balde was out of the country, USCIS denied his application for adjustment of status because he had missed
Balde‘s mother died on January 28, 2006. On March 17, 2006, Balde flew back to New York City and was stopped at John F. Kennedy Airport, where Customs and Border Protection (“CBP“) agents informed him for the first time that his advance parole had been revoked. CBP agents detained Balde and initiated removal proceedings, charging him as inadmissible under
While his appeal was pending before this Court and his removal was stayed, Balde sought supervised release from detention. The United States Immigration and Customs Enforcement Agency (“ICE“) agreed to grant such release, and notified Balde that he would be released under the Intensive Supervision Appearance Program (“ISAP“). First implemented in 2003, ISAP offers “an alternative[] to detention for final-order aliens” who are unable to be removed, and provides for electronic monitoring and supervision for program participants. See Nguyen v. B.I. Inc., 435 F.Supp.2d 1109, 1112-13 (D. Or. 2006).
Following a remand from this Court on consent of the parties, the BIA again denied relief to Balde on December 19, 2008. Balde did not appeal to this Court, and the order of removal became final. Balde‘s passport expired around that time, however, and the government was therefore unable to effect his deportation. He remained at liberty, under supervision. Immigration officials modified the terms of that supervision in 2012. At no time, however, did Balde hold a visa or other legal authorization to enter the United States, and he remained subject to a final order of removal.
On December 14, 2015 — seven years after his removal order became final — Balde was involved in a fight in a Bronx delicatessen. During the altercation, Balde pulled out a gun and pointed it at others inside the deli. He then left the premises, but returned a short while later and fired a single shot into the air from the passenger seat of a vehicle outside the deli.
When officers from the New York City Police Department responded to the scene, witnesses identified the car from which the shot had been fired as it pulled up to an intersection nearby. Police officers pursued and stopped the vehicle. Balde got out of the car from the front passenger seat, and was quickly apprehended. A police search discovered four cartridges in Balde‘s jacket pocket, and a revolver under the front passenger seat where Balde had been sitting.
Witnesses at the deli later identified Balde as the person who had fired the gunshot.
A grand jury indicted Balde on one count of possession of a firearm in violation of
DISCUSSION
We review the denial of a motion to dismiss an indictment de novo. United States v. Kirsch, 903 F.3d 213, 221 (2d Cir. 2018). If we were persuaded by either of Balde‘s arguments, we would be required to vacate the district court‘s judgment and remand with instructions to dismiss the indictment. However, given the particulars of Balde‘s situation, we find that he is within the category of individuals prohibited from possessing a firearm under
I. “In the United States”
Balde first argues that the prohibition of firearms possession in
As with most matters of statutory interpretation, we start with the text of the statute. “Statutory analysis necessarily begins with the plain meaning of a law‘s text and, absent ambiguity, will generally end there.” Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir. 2010) (internal quotation marks and alterations omitted). “In conducting such an analysis, we review the statutory text, considering the ordinary or natural meaning of the words chosen by Congress, as well as the placement and purpose of those words in the statutory scheme.” Id. (internal quotation marks omitted).
The plain meaning here is clear. “In” is an ordinary, familiar English word, with a well understood meaning. Its principal definition in the Oxford English Dictionary is “[w]ithin the limits or bounds of, within (any place or thing).” In, OXFORD ENGLISH DICTIONARY (2d ed. 1989); see also Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566-66 (2012) (relying on dictionary definitions to aid in interpreting statutory text). Someone arriving to meet a friend might call to say that she was “in the lobby;” she might tell her friend over dinner that she was “in Texas last weekend.” It would be clear to the friend in both cases that the speaker meant that she was physically present in those locations at the time she indicated she was “in” them. The plain meaning of the statute reflects that ordinary meaning: a person, citizen or noncitizen, is “in” the United States when he is present within its geographic borders. The text is therefore “absent ambiguity” and our analysis presumptively ends there. Dobrova, 607 F.3d at 301.
Accepting Balde‘s argument would invert the normal plain meaning rule of statutory interpretation by substituting a technical term-of-art meaning for the ordinary plain meaning of a straightforward English word. “In” is not a technical term with a special meaning in immigration law. In order to adopt Balde‘s interpretation, we would have to replace the plain meaning of “is . . . in the United States” with the different meaning of “has entered the United States,” thus substituting a word
We decline to do so for four reasons. First, that is simply not the language that Congress chose. The statute deliberately uses the ordinary word “in,” not the more technical term “entered.”
Second, substituting “has entered” for “is in” would change the meaning of the statute, even with respect to one who unquestionably had “entered” the United States in the technical immigration sense of the word. The language defining the crime refers to a noncitizen who “is illegally or unlawfully in the United States.” A noncitizen who enters the United States with a visa and overstays the term of that visa is clearly in the United States illegally but, at least if his decision to stay was made after his arrival, it would not be correct to say that he entered the United States illegally.
Third, we are interpreting a section of the criminal code that prohibits gun possession by various categories of person, not an immigration provision. Criminal laws are ordinarily written to be understood by the non-specialist individuals who are subject to the law, law enforcement officers, prosecutors, and jurors, not to be given arcane hidden meanings identifiable only by immigration lawyers — and even by them only by identifying a “ghost” technical term supposedly lurking behind the actual, non-technical words used in the statute. See, e.g., Mitsui & Co. v. Am. Exp. Lines, Inc., 636 F.2d 807, 814 (2d Cir. 1981) (“Legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him.“) (citations omitted); see also Taniguchi, 566 U.S. at 568 (“That a definition is broad enough to encompass one sense of a word does not establish that the word is ordinarily understood in that sense“).
Fourth, Congress clearly knows how to import the technicalities of immigration law into the federal criminal code when it so chooses. For example, in the subsection immediately following the one at issue here, Congress prohibited possession of firearms by noncitizens who were “admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act).”
Balde bases his argument almost entirely on United States v. Lopez-Perera, a decision in which the Ninth Circuit held that
But even if the ATF regulation were entitled to deference, it does not help Balde. First, the regulation does not purport to define being “in the United States” as requiring an entry. Rather, it defines the entire phrase “[a]lien illegally or unlawfully in the United States,” thus conflating the two issues Balde wishes to separate. Second, it primarily defines the term as referencing noncitizens “not in valid immigrant, nonimmigrant, or parole status,” thus focusing primarily on what makes their presence unlawful rather than on what constitutes being “in” the country, and it does so in a way that encompasses Balde, who has never had a valid immigrant or non-immigrant visa and is not, as explained in Part II below, in “parole status.” And third, the language of the regulation referencing noncitizens who have “entered” the United States is only one example of those covered by that definition; another category that is covered is “any alien . . . [u]nder an order of deportation, exclusion, or removal, . . . whether or not he or she has left the United States.”
In any event, we are not required to defer to the ATF‘s interpretation. Since Lopez-Perera was decided, the Supreme Court has clarified that law enforcement agency interpretations of criminal statutes are not entitled to deference: “Whether the Government interprets a criminal statute too broadly (as it sometimes does) or too narrowly . . . , a court has an obligation to correct its error.” Abramski v. United States, 573 U.S. 169, 191 (2014); see also United States v. Gayle, 342 F.3d 89, 93 n.4 (2d Cir. 2003) (noting this Court had requested additional briefing on the issue of deference and both parties agreed that a definition in
Given these considerations, we decline to adopt the rule that Balde would like us to derive from Lopez-Perera. We conclude instead that the “in the United States” element of
II. “Illegally or Unlawfully” Present
Balde next argues that, even assuming that he is considered to have been “in” the United States within the meaning of the statute, he was not present “illegally or unlawfully” because he was effectively paroled into the country when he was released from detention in 2007. His argument essentially rests on what at best amounts to an administrative mistake. Balde did not seek parole as that status is defined in
It is helpful to contextualize Balde‘s argument by reviewing the various statutory authorities providing for the detention of noncitizens. The government‘s authority to detain an individual depends in part on whether that person is seeking admission to the United States or, once having entered, is removable for some reason. See, e.g.,
The government may also “parole” any noncitizen “applying for admission” into the United States “temporarily under such conditions as [it] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”
Balde does not dispute that, when he presented himself at the airport on his return from Guinea, he was detained, not paroled, within the meaning of these provisions. His argument focuses, rather, on what happened thereafter, during the lengthy process of adjudicating the government‘s effort to remove him.
If a noncitizen is administratively determined to be inadmissible, a removal order is entered and further immigration detention is governed by
At the time ICE granted Balde‘s application for supervised release, he appears to have fallen outside the categories for which such release was available. He was required to be detained when he presented himself at the border when was not admitted or paroled. And once a stay had been granted by this Court pending appeal, until the final resolution of the appeal Balde had not entered the “removal period,” let alone reached the expiration of that period, at which point he would become eligible for release under the conditions set forth in
In the documentation accompanying Balde‘s release from detention, ICE stated that it was reviewing his continued detention pursuant to
Nothing in the record, however, suggests that Balde applied for, or that the government granted, humanitarian parole. Instead, Balde wrote that he was seeking supervised release, and the government released him under the ISAP program, which provides for the kind of release he requested. If, as Balde contends, he was in fact ineligible for that program because he was not yet subject to a final order of
Balde also does not contend that any individual under an order of removal who is properly released under supervision pursuant to
In any event, whatever may have been the case at the moment of Balde‘s release from detention and admission to the ISAP program, the key inquiry for purposes of
Having determined that Balde was not paroled, we have little trouble concluding that he is within the category of individuals prohibited by
Accordingly, in light of Balde‘s immigration status at the time of the conduct underlying his arrest, we conclude that he was properly prosecuted under Section
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.