USA v. Javier Anaya-Acosta

Filing

FILED PER CURIAM OPINION (MARY M. SCHROEDER, RICHARD C. TALLMAN and JOHN A. JARVEY) AFFIRMED. FILED AND ENTERED JUDGMENT. [7597188]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAVIER ANAYA-ACOSTA,
Defendant-Appellant.

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


No. 09-50610
D.C. No.
CR 09-00456-FMC
OPINION

Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Argued and Submitted
November 4, 2010—Pasadena, California
Filed January 3, 2011
Before: Mary M. Schroeder and Richard C. Tallman,
Circuit Judges, and John A. Jarvey, District Judge.*
Per Curiam Opinion

*The Honorable John A. Jarvey, District Judge for the Southern District
of Iowa, sitting by designation.

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UNITED STATES v. ANAYA-ACOSTA

COUNSEL
Sean K. Kennedy, Federal Public Defender, and Jonathan D.
Libby (argued), Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant.
André Birotte Jr., United States Attorney, Christine C. Ewell,
Assistant United States Attorney, Chief, Criminal Division,
and Jennifer M. Resnik (argued), Assistant U.S. Attorney, Los
Angeles, California, for the plaintiff-appellee.

OPINION
PER CURIAM:
Javier Anaya-Acosta (“Anaya-Acosta”) appeals his December 3, 2009 conviction for being an illegal alien in possession
of a firearm and ammunition, in violation of 18 U.S.C.
§ 922(g)(5)(A). Anaya-Acosta argues that, because he was
subject to a departure control order issued pursuant to 8
C.F.R. § 215.2, he was not illegally in the United States, as
required for a conviction under § 922(g)(5)(A), when he possessed the firearm and ammunition. He contends that the district court erred in denying his motion for judgment of
acquittal and that it improperly instructed the jury as to
whether he was legally within the United States.
Because we find that the issuance of a departure control
order does not modify an alien’s immigration status and is not
equivalent to being paroled into the United States, we affirm
Anaya-Acosta’s conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Anaya-Acosta is a native and citizen of Mexico, and he
admitted to entering the United States without inspection on

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or about December 17, 1997. On July 27, 2007, an immigration judge issued an order granting Anaya-Acosta the opportunity to voluntarily depart before August 2, 2007, with an
alternative order of removal. However, on October 17, 2007,
Immigration and Customs Enforcement (“ICE”) served
Anaya-Acosta with a departure control order that required
him to remain in the country until its revocation. The order
was issued at the request of the Los Angeles Police Department because Anaya-Acosta was a material witness in a state
murder case. Anaya-Acosta was not held in custody while he
awaited that trial.
While under the departure control order, Anaya-Acosta was
arrested in California on May 8, 2009 for being an illegal
alien in possession of a firearm and ammunition in violation
of 18 U.S.C. § 922(g)(5)(A). Anaya-Acosta admitted to possessing the loaded firearm and to being a native and citizen
of Mexico. At trial, he challenged only the illegality of his
presence in the United States. He argued that the departure
control order, which temporarily prohibited him from leaving
the United States, rendered him legally within the country
when he possessed the firearm. The district court denied
Anaya-Acosta’s motion for judgment of acquittal on this
issue, and a jury convicted him.
STANDARD OF REVIEW
We review a district court’s denial of a motion for judgment of acquittal and its interpretation of the elements of a
criminal statute de novo. United States v. McNeil, 320 F.3d
1034, 1035 ( 9th Cir. 2003) (citing United States v. Hardy,
289 F.3d 608, 612 (9th Cir. 2002)); United States v. Carranza, 289 F.3d 634, 642 (9th Cir. 2002). To the extent
Anaya-Acosta challenges the jury instructions given by the
district court on the elements of the offense charged, the standard of review is also de novo. United States v. PerdomoEspana, 522 F.3d 983, 986 (9th Cir. 2008).

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DISCUSSION
To sustain a conviction under § 922(g)(5)(A), the government must prove that Anaya-Acosta was “illegally or unlawfully in the United States” when he possessed the firearm.
Accordingly, we must determine what effect, if any, a departure control order has on the legality of an alien’s presence in
the country for purposes of § 922(g)(5)(A). Anaya-Acosta
contends that the departure control order cured his illegal status by modifying the immigration judge’s order for voluntary
departure or removal. We disagree and hold that a departure
control order does not affect the legal status of an alien’s presence in the United States under § 922(g)(5)(A).
[1] The Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) is charged with promulgating regulations under
§ 922. Because the statute itself is silent as to the meaning of
“illegally or unlawfully in the United States,” we defer to the
ATF’s interpretation. Chevron, Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 844-45 (1984); United States v.
Lopez-Perera, 438 F.3d 932, 935 (9th Cir. 2006). The regulation interpreting § 922(g)(5)(A) reads, in pertinent part, as follows:
Alien illegally or unlawfully in the United States.
Aliens who are unlawfully in the United States are
not in valid immigrant, nonimmigrant or parole status. The term includes any alien —
(a) Who unlawfully entered the United States without inspection and authorization by an immigration
office and who has not been paroled into the United
States under section 212(d)(5) of the Immigration
and Nationality Act (INA);
...
(d) Under an order of deportation, exclusion, or
removal, or under an order to depart the United

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States voluntarily, whether or not he or she has left
the United States.
27 C.F.R. § 478.11. We find that Anaya-Acosta was illegally
in the country and remained so as a matter of law under both
of the foregoing subsections of the regulation.
[2] We reached a similar result in United States v. Latu,
479 F.3d 1153 (9th Cir. 2007), in which the defendant was
convicted under § 922(g)(5)(A) despite being allowed to
remain in the country while his non-frivolous application for
adjustment of status was pending. Latu’s conviction was
affirmed as the Court stated, “absent a statute preventing
Latu’s removability upon the filing of his application for
adjustment of status,” his presence remained illegal or unlawful under § 922(g)(5)(A) as interpreted by 27 C.F.R. § 478.11.
Id. at 1159. See also United States v. Bravo-Muzquiz, 412
F.3d 1052 (9th Cir. 2005) (finding that defendant was unlawfully in the United States under § 922(g)(5)(A) despite having
been released on an immigration bond pending conclusion of
his removal proceedings). Similarly, there is no legal authority indicating that Anaya-Acosta’s immigration status is
affected by the departure control order, which ICE can revoke
at any time. We find that Anaya-Acosta’s status is legally
indistinguishable from Latu’s.
[3] Alternatively, Anaya-Acosta argues that his presence in
the United States at the time of his arrest was the equivalent
of being “paroled” into the country pursuant to 8 U.S.C.
§ 1182(d)(5), thus excluding him from the operation of
§ 478.11(a). Again, we disagree.
[4] The Attorney General has discretionary authority to
grant parole “for urgent humanitarian reasons or significant
public benefit” to any alien applying for admission to the
United States. 8 U.S.C. § 1182(d)(5)(A). Anaya-Acosta cites
no authority to support his claim that a departure control order
is equivalent to parole. Indeed, parole is granted only to aliens

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who have not yet entered the United States and who must be
inspected by immigration officers before entering. 8 U.S.C.
§§ 1182(d)(5), 1225(a)(3); 8 C.F.R. § 1.1(q).
Anaya-Acosta, in contrast, had already illegally entered the
country without inspection or authorization, and he was
ordered to leave. His reliance upon the ATF’s exclusion for
paroled aliens is therefore misplaced due to his pre-existing
unlawful entry and illegal status. If the ATF wished to create
an exclusion for aliens under departure control orders in addition to aliens paroled into the country, it could have done so,
but it did not.
[5] Moreover, Anaya-Acosta ignores the disjunctive nature
of § 478.11. Section § 478.11(d) includes any alien “under an
order to depart the United States voluntarily, whether or not
he or she has left the United States.” This section clearly
reaches Anaya-Acosta’s presence in the United States under
the departure control order. Thus, even assuming § 478.11(a)
is somehow inapplicable to Anaya-Acosta, he would still be
illegally here under § 478.11(d).
[6] Finally, Anaya-Acosta contends that “he had, in
essence, already departed the United States” upon ICE’s grant
of voluntary departure, and that he never thereafter illegally
entered the United States to bring him within § 478.11(a),
despite his admission of having entered without inspection or
authorization in 1997. He cites cases holding that an alien has
not entered the country unless the alien is free from official
restraint, see, e.g., Lopez-Perera, 438 F.3d at 935; United
States v. Lombrera-Valdovinos, 429 F.3d 927, 929 (9th Cir.
2005), and argues that after his voluntary “departure,” he was
not free from official restraint inside the United States
because he was under the informal supervision of the Los
Angeles Police Department. Anaya-Acosta does not cite, and
we have not found, a single case to support his contention that
an alien, having entered the country illegally and having been
ordered to leave, should be treated as having departed without

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actually doing so. Anaya-Acosta’s contention that his presence was not illegal because “he had, in essence, already
departed the United States” ignores both reality and the plain
language of § 478.11(d), which provides that an alien is
unlawfully present if “under an order to depart the United
States voluntarily, whether or not he or she has left the United
States.”
CONCLUSION
[7] The district court properly denied Anaya-Acosta’s
motion for acquittal and correctly instructed the jury on the
elements of the offense charged against him. His conviction
is AFFIRMED.