Immigrant On Overstayed Visa Is "Unlawful" for Firearm Possession Statute

US v. Sabahi: Sabahi came to the United States from Yemen pursuant to a visa in 1997.  The visa expired in 1998, but Sabahi remained.  He eventually registered with program called NSEERS (a "War on Terror-related program pursuant to which non-immigrant men of certain ages and from certain countries were fingerprinted, photographed, and interviewed").  He was placed in removal proceedings.  However, in 2003 he marred a US citizen and filed an application to "legalize his presence in the United States."  While this was going on, in 2007, Sabahi possessed  multiple firearms.  For that, he was charged with being "illegally or unlawfully present in the United States" while in possession of a firearm.  He moved to dismiss the charges, arguing that either his NSEERS registration or pending alteration proceeding meant he was not in the country "illegally or unlawfully."  The district court denied the motion and Sabahi was convicted following a jury trial.

The Fourth Circuit affirmed Sabahi's conviction.  The court agreed with the district court that neither Sabahi's NSEERS registration nor the adjustment proceedings took him outside the language of the statute.  As for the NSEERS registration, the court concluded that Sabahi's registration did not place him in the equivalent of "parole" status with regards to immigration.  As to the adjustment proceedings, the court concluded that until Sabahi's status was actually changed, those proceedings made no difference to the criminal charge.

NOTE: This case was decided on June 12, 2013.