## Facts

- Emmanuel Venegas-Vasquez, a citizen of Mexico, unlawfully entered the United States as a child in 2001.
- He had not applied for U.S. citizenship or lawful permanent residence.
- In January 2015, U.S. Citizenship and Immigration Services granted him Deferred Action for Childhood Arrivals (DACA) and later renewed it.
- He received employment authorization and a Social Security number.
- In 2016, after traveling abroad, he was paroled into the United States under INA § 212(d)(5)(A).
- In May 2018, police searched his truck after reports of gunfire and found a loaded 9mm handgun and a loaded AK-47 style rifle.
- A federal grand jury indicted him for possessing firearms as “an alien illegally or unlawfully in the United States,” in violation of 18 U.S.C. § 922(g)(5)(A).
- He moved to dismiss the indictment under Fed. R. Crim. P. 12(b)(3)(B)(v), arguing that his DACA and parole meant he was not “illegally or unlawfully” in the United States.

## Issues

1. Whether the phrase “illegally or unlawfully in the United States” in 18 U.S.C. § 922(g)(5)(A) refers to unlawful immigration status, unlawful physical presence, or both.
2. Whether a DACA recipient who has been paroled into the United States falls within § 922(g)(5)(A).
3. Whether any statutory ambiguity about that element must be resolved in the defendant’s favor under the rule of lenity, requiring dismissal of the indictment.

## Decision

- The court granted the motion to dismiss for failure to state an offense.
- It held that § 922(g)(5)(A)’s phrase “illegally or unlawfully in the United States” is grievously ambiguous as to whether it targets immigration status or physical presence.
- Because the ambiguity concerned an element defining criminal liability, the rule of lenity applied.
- Applying lenity, the court concluded Venegas-Vasquez could not be prosecuted under § 922(g)(5)(A) on the undisputed facts (DACA plus parole).
- The indictment was dismissed.

## Legal Principles

- An indictment may be dismissed under Fed. R. Crim. P. 12(b)(3)(B)(v) when, on undisputed facts, it presents a pure question of law about whether the charged conduct constitutes a federal offense.
- When a criminal statute remains “grievously ambiguous” after ordinary interpretive tools, the rule of lenity requires courts to adopt the interpretation more favorable to the defendant.
- The rule of lenity applies with special force when the ambiguity concerns an element that defines the conduct criminalized, rather than a collateral or sentencing question.
- For § 922(g)(5)(A), the phrase “illegally or unlawfully in the United States” does not clearly specify whether Congress intended to criminalize firearm possession based on lack of lawful immigration status, unlawful physical presence, or some combination, creating uncertainty for individuals with discretionary immigration authorizations such as deferred action and parole.

## Conclusion

The court dismissed a § 922(g)(5)(A) firearm-possession indictment against a DACA recipient who had been paroled into the United States, holding that the statute’s “illegally or unlawfully” element is grievously ambiguous in that setting and that the rule of lenity barred prosecution.


United States v. Venegas-Vasquez, 376 F. Supp. 3d 1094 (D. Or. 2019)