Background

• Border Patrol stopped Ricardo Rizo-Rizo near the U.S.–Mexico border; he admitted he was a Mexican citizen without authorization and said he had just illegally entered the United States.
• Rizo-Rizo was charged with attempted illegal entry under 8 U.S.C. § 1325(a)(1) and pled guilty without a plea agreement after a magistrate judge conducted a plea colloquy.
• During the colloquy the magistrate recited elements of attempted illegal entry but did not include "knowledge of alienage;" defense counsel objected to that omission.
• The magistrate overruled the objection, Rizo-Rizo pleaded guilty and was sentenced to time served.
• The district court affirmed the magistrate’s ruling; on appeal to the Ninth Circuit the central legal question was whether § 1325(a)(1) requires proof that the defendant knew his alienage.

Issues

Key Cases Cited

• Rehaif v. United States, 139 S. Ct. 2191 (2019) (Supreme Court held an express mens rea requirement applies to status when statute uses a separate “knowingly” modifier)
• Staples v. United States, 511 U.S. 600 (1994) (presumption of scienter applies absent indication Congress intended a regulatory strict-liability offense)
• Morissette v. United States, 342 U.S. 246 (1952) (analytical framework for inferring mens rea from statutory silence vs. regulatory offenses)
• Liparota v. United States, 471 U.S. 419 (1985) (presumption of scienter applies where statute would criminalize a broad range of innocent conduct)
• United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir. 2000) (attempt/reentry common-law intent principles and interpretation of § 1326)
• United States v. Smith-Baltiher, 424 F.3d 913 (9th Cir. 2005) (knowledge of citizenship can negate intent required under § 1326 attempt theory)
• Pena-Cabanillas v. United States, 394 F.2d 785 (9th Cir. 1968) (treated § 1326 as a regulatory immigration-control offense)
• United States v. Collazo, 984 F.3d 1308 (9th Cir. 2021) (discussion of mens rea scope where statute includes an express "knowingly" modifier)