744 F.3d 405
6th Cir.2014Background
- Defendant Francisco Romero-Caspeta, a Mexican citizen, was removed in 1999 after attempting entry with another person’s border pass and was issued a removal order prohibiting reentry for five years without Attorney General consent.
- The removal order expressly warned that reentry without the Attorney General’s express consent is a crime under 8 U.S.C. § 1326.
- In April 2012 (more than five years after removal) Romero-Caspeta was detained in Michigan and charged with unlawful reentry under 8 U.S.C. § 1326(a).
- At trial he conceded the factual elements (alien, removed, reentered) but argued as a legal defense that after the five-year exclusion period in 8 U.S.C. § 1182(a)(9)(A)(i) expired, he no longer needed advance Attorney General consent under § 1326(a).
- The district court denied his motion for judgment of acquittal and instructed the jury that he still needed the Attorney General’s permission to reenter; the jury convicted.
- On appeal the Sixth Circuit reviewed the acquittal motion de novo and the jury-instruction claim for accuracy, and affirmed, joining Fourth and Fifth Circuit precedent rejecting the five-year-safety-period defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expiration of §1182(a)(9)(A)(i)’s five‑year exclusion removes §1326(a)’s advance‑consent requirement | Government: §1326 requires proof of reentry without AG consent regardless of §1182’s five‑year period | Romero‑Caspeta: after five years the removal order’s limitation ends and §1326(a) no longer requires advance AG consent | Court: Held AG consent remains required; §1182 defines admissibility, it does not repeal or limit §1326’s elements |
Key Cases Cited
- United States v. Bernal-Gallegos, 726 F.2d 187 (5th Cir. 1984) (held §1182 does not limit §1326; AG consent required regardless of five‑year period)
- United States v. Joya‑Martinez, 947 F.2d 1141 (4th Cir. 1991) (held availability of a visa after five years is not a defense absent actual visa/consent)
- United States v. Solorio, 337 F.3d 580 (6th Cir. 2003) (standard of review for judgment of acquittal appeals)
- United States v. Wuliger, 981 F.2d 1497 (6th Cir. 1992) (standard for reviewing jury instruction accuracy)