Case: 21-20104 Document: 00516186169 Page: 1 Date Filed: 01/31/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED January 31, 2022 No. 21-20104 Lyle W. Cayce Summary Calendar Clerk United States of America, Plaintiff—Appellee, versus Jose Blademir Portillo-Saravia, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18-CR-650-1 Before Higginbotham, Higginson, and Duncan, Circuit Judges. Per Curiam:* Jose Blademire Portillo-Saravia, a native and citizen of El Salvador, was convicted after a jury trial of one count of being an alien illegally and unlawfully present in the United States in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-20104 Document: 00516186169 Page: 2 Date Filed: 01/31/2022 No. 21-20104 First, Portillo-Saravia challenges the district court’s denial of his motion to dismiss the indictment on the basis that § 922(g)(5)(A) is unconstitutionally vague and the court should have applied the rule of lenity. We review a district court’s denial of a motion to dismiss an indictment de novo. United States v. Arrieta, 862 F.3d 512, 514 (5th Cir. 2017). Questions of statutory interpretation are likewise reviewed de novo. Id. Section 922(g)(5)(A) makes it unlawful for any person “who, being an alien[,] is illegally or unlawfully in the United States . . . [to] possess in or affecting commerce, any firearm or ammunition.” § 922(g)(5)(A). The terms “illegally” and “unlawfully” are not defined by the statute. See United States v. Orellana, 405 F.3d 360, 365 (5th Cir. 2005). Nevertheless, we have interpreted the phrase “illegally or unlawfully in the United States” to refer to an alien “whose presence within the United States is forbidden or not authorized by law.” Id. at 366. Our “precedent reveals that immigration ‘status’ is the key factor in determining the applicability of [§] 922(g)(5)(A).” Arrieta, 862 F.3d at 515. Portillo-Saravia’s presence within the United States was unlawful at the time of his entry. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Although he was deemed an unaccompanied alien child upon his arrival, this categorization did not afford him any lawful status. See 6 U.S.C. § 279(g)(2). Notably, at the time of the instant offense, Portillo-Saravia was an adult. His pending asylum application also did not constitute a defense to § 922(g)(5)(A). In cases where the defendant does not hold lawful status and has a pending immigration application, we have held the statute sufficiently clear to uphold prosecution under § 922(g)(5)(A). See, e.g., United States v. Lim, 897 F.3d 673, 683-84 (5th Cir. 2018); United States v. Elrawy, 448 F.3d 309, 314 & n.5 (5th Cir. 2006); United States v. Lucio, 428 F.3d 519, 524-26 (5th Cir. 2005). Accordingly, Portillo-Saravia’s attempt to show ambiguity in his immigration status and in § 922(g)(5)(A) to trigger the rule …
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