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United States v. Al Sabahi, No. 12-4363

Decided: June 12, 2013

The Fourth Circuit affirmed Appellant Al Sabahi’s conviction on four courts for knowingly possessing firearms while unlawfully present in the United States, in violation of 18 U.S.C. §§ 922(g)(5)(a) and 924(a)(2).  Al Sabahi appealed alleging that (1) he was not illegally or unlawfully present in the United States; (2) the district court committed a Confrontation Clause violation; and (3) the evidence was insufficient to support his conviction.

Al Sabahi, a Yemeni citizen, entered the U.S. on November 12, 1997.  His visa expired in May 1998.  Al Sabahi remained in the U.S. after his visa expired.  On January 10, 2003, he voluntarily registered with the National Security Entry-Exit Registration System (NSEERS).  Immigrations and Customs Enforcement then placed Al Sabahi in removal proceedings for overstaying his visa.  Al Sabahi married a U.S. citizen in August 2003.  Thereafter, he filed an I-485 application to legalize his presence in the U.S.  Al Sabahi worked at a convenience store in Littleton, North Carolina during the relevant time period.  On February 15, 2007, a Pepsi employee went to the store to remove a Pepsi cooler.  Al Sabahi placed a .9-millimeter pistol on the store’s counter during the visit and would not turn over the cooler.  The Pepsi employee called his supervisor who came to the store, saw the gun, realized Al Sabahi would not release the cooler, and called the chief of the Littleton Police Department.  Two months later, Al Sabahi was stopped at a traffic checkpoint – conducted by the police chief and other officers – while driving a gold Toyota Camry.  The car belonged to Ali Saleh, the owner of the convenience store, but Al Sabahi frequently borrowed it.  An officer saw part of a pistol grip on the car’s floorboard.  A .9-millimeter pistol was retrieved from the vehicle.  The police chief instructed that Al Sabahi be charged with carrying a concealed weapon. On May 9, 2007, another individual went to the convenience store to sell a .380 caliber handgun to Al Saleh.  Saleh was not present at the store.  Al Sabahi took cash from the register and purchased the firearm.  The seller wrote a receipt in Al Sabahi’s name.  When Saleh learned Al Sabahi had bought the gun, he informed the seller that Al Sabahi was an illegal and should not have purchased the gun.  Lee later prepared a second receipt naming Saleh as the purchaser.  Saleh testified that, on September 7, 2007, he went home and found Al Sabahi drunk, carrying the .380 caliber handgun and claiming it belonged to him.  Al Sabahi then left with the firearm.  Saleh reported the theft to the police.  The police retrieved the firearm from one of Saleh’s relatives.  These four incidents made up the facts of the four specific counts leveled against Al Sabahi.  A jur convicted Al Sabahi on all counts.

The court first addressed Al Sabahi’s argument that the district court improperly found he was unlawfully present in the U.S.  The court noted that federal regulations recognize that illegal aliens include nonimmigrants whose authorized period of stay has expired.  The court cited case law for the proposition that an alien becomes unlawfully present in the U.S., for the purposes of the statute, upon commission of a status violation.  Moreover, the court cited case law indicating that an alien who has acquired unlawful or illegal status cannot relinquish that status until his application for adjustment of status is approved.  The court concluded Al Sabahi was unlawfully in the United States at the time he possessed the firearms in question, since he remained in the country after his visa expired and his request for adjustment of status has not been approved.  Al Sabahi argued that he was “in effect ‘paroled’ via 8 U.S.C. §1182(d) when he registered through NSEERS, since federal regulations provide that aliens are not unlawfully in the United States if they are in valid parole status.  The court noted that parole is only granted to aliens who have not yet entered the U.S.  Also, the court observed that the U.S. Code authorizes the Attorney General to parole aliens into the United States temporarily for urgent humanitarian reasons or significant public benefit.  The court rejected Al Sabahi’s argument after finding that he was already present in the U.S. when registering with NSEERS, and that he had not shown any humanitarian reasons or significant public benefit warranting his parole.  Al Sabahi also argued that he was not illegally in the United States due to his I-485 application and cited a Tenth Circuit decision suggesting, in dicta, that a defendant who received a pistol after filing an amnesty application would not be illegally in the U.S. for purposes of the statute.  The court noted that while some courts had favorably cited the dicta, the Fourth Circuit has held “that the mere filing of an application for adjustment of status does not legalize the alien’s presence in the United States, and it is still a crime under § 922(g)(5), for that individual to possess a firearm.”

For this reason, the court found Al Sabahi’s argument lacked support and concluded that the pendency of his application did not alter his unlawful status at the time he possessed the firearms.

Al Sabahi also contended that the district court erred in allowing the case to proceed without waiting for an immigration judge to decide whether Al Sahabi was removable.   Al Sabahi cited 8 U.S.C. § 1229(a)(1), which states: “[a]n immigration judge shall conduct proceedings for deciding the admissibility or deportability of an alien.”  However, the court stated that this provision does not divest district courts of the ability to decide whether aliens are unlawfully present for purposes of the statute.  Therefore, the court determined that Al Sabahi’s argument lacked merit.

In addition, Al Sabahi contended that the district court violated his Confrontation Clause rights by not allowing his counsel to question government witness regarding his pending I-485 application and NSEERS participation.  The district court permitted cross-examination of the witness, but declined to permit questioning on NSEERS and the I-485 application on the basis that it was irrelevant.  The court declined to find any Sixth Amendment violation, since Al Sabah was permitted to cross-examine and had given no reason how this exclusion of testimony violated his confrontation right.

Lastly, Al Sabahi contended that the evidence was insufficient to support the jury verdict.  The court held that the substantial evidence supported the jury’s verdict for each conviction.

Full Opinion

– A. Hadden Lucas