## Facts

- Jose Narciso Orellana, a citizen of El Salvador, entered the United States without inspection in February 2000 and remained.
- After El Salvador was designated for Temporary Protected Status (TPS) under 8 U.S.C. § 1254a, Orellana applied for and received TPS and employment authorization, disclosing his prior unlawful presence in his application.
- He worked in Houston as an armed security guard; his employer arranged the purchase of a Taurus 9mm handgun for his use at work.
- Orellana obtained a Texas security officer credential using an incorrect Social Security number; he later obtained a valid number but did not update it with the licensing authority.
- The government charged him under 18 U.S.C. § 922(g)(5)(A) for possessing a firearm as an alien “illegally or unlawfully in the United States.”

## Issues

1. Whether an alien granted TPS and employment authorization under 8 U.S.C. § 1254a is an alien “illegally or unlawfully in the United States” for purposes of 18 U.S.C. § 922(g)(5)(A).
2. If congressional intent is unclear on TPS coverage under § 922(g)(5)(A), whether the rule of lenity requires construing the statute in the defendant’s favor.

## Decision

- The Fifth Circuit reversed the conviction.
- The court held that it was uncertain whether Congress intended § 922(g)(5)(A) to apply to aliens granted TPS.
- Because the firearms disability’s application to TPS recipients was not clearly established, the court applied the rule of lenity and declined to extend criminal liability to Orellana.

## Legal Principles

- A criminal statute imposing liability on an “alien illegally or unlawfully in the United States” does not clearly reach a TPS recipient where the statutory scheme authorizes the individual to remain and work during the TPS period.
- When a criminal statute’s reach is genuinely uncertain as applied to a particular category of persons, the rule of lenity requires resolving the ambiguity in the defendant’s favor.
- Interaction between immigration authorization schemes and criminal prohibitions requires clear congressional direction before courts treat recipients of congressionally authorized temporary status as subject to a felony disability tied to unlawful presence.

## Conclusion

The Fifth Circuit vacated Orellana’s § 922(g)(5)(A) conviction, concluding that Congress had not spoken clearly on whether TPS recipients fall within the statute’s “illegally or unlawfully” category and that lenity barred extending the firearms prohibition to his TPS-based presence.


United States v. Orellana, 405 F.3d 360 (5th Cir. 2005)