Opinion
CRIMINAL CASE H-03-25I
December 10, 2003
Opinion on Status
1. Introduction.
A grand jury indicted an alien for possessing a firearm while illegally in the United States. Because the government officially allowed him to stay temporarily, he is in the country legally, and the indictment will be dismissed.
2. Background.
In January 2001, Giovanni Flores entered the United States in Laredo, Texas. Five months later, he registered for "temporary protected status." He is a citizen of El Salvador, a country whose citizens the United States sought to accommodate. Temporary protected status is given to aliens coming from a country that is suffering from war, natural disasters, or another extraordinary, temporary condition that threatens its citizens. It the attorney general gives a country's people temporary protection, its citizens may be authorized to stay and to work in the United States until the designation expires. Sec 8 U.S.C. § 1254a, et seq.
In March 2001, because, of a series of earthquakes, the attorney general designated El Salvador as a country whose citizens may be temporarily protected. See 6 Fed. Register 14214-01. The designation lasted until September 2003. Flores got temporary protection status as a citizen of El Salvador, and because of his status, he also was issued an employment authorization card and social security card. He also had a Texas identification card. These enabled Texas to commission him as a private security officer and work for a local private patrol.
Flores re-registered for temporary protection in October 2002 and for an extension of his work permit in November 2002; they were granted. He was arrested while working on June 8, 2003, for possessing a firearm as an alien illegally in this country. At the time of his arrest, he still had protected status and a valid work permit.
3. Claims.
The parties agree that Flores is an alien who possessed a firearm. Flores moves to dismiss his indictment arguing that he was not illegally in the United States when he possessed it. See 18 U.S.C. § 922(g)(5)(a).
4. Protection.
Flores claims that he was lawfully in the United States because he had temporary protected status as a citizen of El Salvador when he possessed the gun. The government contends that his protected status only gives temporary relief; that is, Flores will be deported after the protection expires. It argues that the "protected" designation, along with the work permit, are merely humanitarian efforts by the United States designed to help immigrants work for a finite period, rather than commit crimes, while in this country.
In addition, the government claims that Flores is here illegally because he was not properly inspected by immigration officials when he entered the country. See 18 U.S.C. § 1325. Flores's failure to check with immigration officials when he got here does not matter. The indictment does not charge him with possession of a firearm in the period between his entry and protection. Even if he was charged with illegal entry, his official status would ratify his entry. Contra U.S. v. Barzargan, 992 F.2d 844 (8th Cir. 1993).
Once he registered for temporary protection status, the government consented to his presence in this country, Flores did all his paperwork, and the government took his fees and gave him the requested permits. His receipt of the status presumes that without temporary protection he would be an "illegal". It is no different than the government granting amnesty to a detecting alien who then possesses a gun. See 8 U.S.C. § 1255a(a)(2). The government has not shown that Flores's presence here was unauthorized when he held the gun in the indictment. See U.S. v. Igbatayo, 764 F.2d 1039 (5th Cir. 1985).
Some courts have held that an alien who has applied for permanent residency may possess a firearm. See U.S. v. Brissett, 720 F. Supp. 90, 91 (S.D. Tex. 1989); U.S. v. Salmon, 266 F. Supp.2d 1367, 1374 (M.D. Fla. 2003). They decided that the treatment of those aliens during the pendency of their applications implicitly authorized their presence in this country. The government tries to distinguish those cases by complaining that Flores has not applied for legal residency — temporary or permanent — but a comparison of the situations shows compelling similarities.
Aliens with a pending residency application may remain in the United States until their cases are decided, may get a work permit, and may get health care and food stamps. See 8 U.S.C. § 12553(6); 8 C.F.R. § 274a.12. Temporarily protected aliens cannot be removed from this country, may get a work permit, and may travel abroad with the consent of the attorney general. See 8 U.S.C. § 1254a(1)(A), (B), (f)(.3). Based on their treatment, aliens in both situations are here lawfully. A country that authorizes an alien to come and work until his country recovers from its problems consents to his presence in the country.
Temporary protection status is analogous to the bracero program. From 1942 until 1964, the United States allowed Mexican citizens to come to this country on seasonal contracts to work on railroads and in agriculture. The program cured the labor shortage caused by World War 11 and the Korean War. See Barbara A. Driscoll, The Tracks North (1999).
Without the protection of peculiar government programs, the braceros and Flores would have been illegal aliens. Technically, this law barring the possession of a firearm by an illegal alien was not adopted until 1968, after the expiration of the bracero system, but the analogy is sound.
5. Conclusion.
The government took Flores's money, allowed him to work, and told him he could stay until his country recovered from a natural disaster. At the time Flores held the gun, it authorized his presence in the United States. Flores's indictment will be dismissed because he was not m this country illegally when he possessed the firearm.