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United States v. Balde

United States Court of Appeals, Second Circuit

June 13, 2019

United States of America, Appellee,
v.
Souleymane Balde, Defendant-Appellant.

          Argued: November 6, 2018

         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 18 U.S.C. § 922(g)(5)(A). He challenges his conviction on two grounds. First, he argues that at the time he possessed the firearm he was not “in” the United States because he had not “entered” the United States as that term is defined for the purposes of immigration law, and second, he argues that even if he was “in” the United States, he was not present “illegally or unlawfully.” Finding both arguments unavailing, we AFFIRM the judgment of the district court.

          Matthew B. Larsen, Federal Defenders of New York, New York, NY, for Defendant-Appellant Souleymane Balde.

          Elinor Tarlow, Assistant United States Attorney (Anna M. Skotko, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.

          Before: Hall and Lynch, Circuit Judges, and Gardephe, District Judge. [*]

          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 18 U.S.C. § 922(g)(5)(A). On appeal, Balde argues that the charge against him must be dismissed for two reasons. First, he argues that to be "in the United States" within the meaning of the criminal statute, a noncitizen must have "entered" the United States as that term is defined in immigration law, and that merely being physically present within our borders does not suffice. Second, he argues that, even if he was "in" the United States when he possessed a firearm, he was not then here "illegally or unlawfully," given the particular circumstances of his release from immigration detention and his immigration status.

         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 his interview and because it determined that the request for postponement submitted by Balde's attorney did not demonstrate sufficient reason to postpone it. The agency also revoked Balde's advance parole.

         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 8 U.S.C. § 1182(a)(7)(A)(i)(I), which applies to noncitizens seeking admission without a valid visa, passport, or other suitable travel document. In due course, an immigration judge issued an order of removal. Balde appealed, first to the Board of Immigration Appeals ("BIA"), which dismissed the appeal, and then to this Court, which granted a stay of removal pending decision.

         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 ...


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