United States v. Vasquez Macias
740 F.3d 96
2d Cir.2014Background
- Vasquez, a Honduran national, was deported in 2000 after a drug conviction and reentered the U.S. unlawfully around 2001.
- In 2013 he traveled from Texas to Niagara Falls and walked across the Rainbow Bridge into Canada without passport/visa; Canadian Border Services (CBSA) refused him entry and provided an "Allowed to Leave" form.
- CBSA agents forcibly returned Vasquez in handcuffs to U.S. custody and handed him to U.S. CBP, which ran immigration checks and arrested him.
- He was indicted and convicted under 8 U.S.C. § 1326 for being a deported alien "found in" the United States.
- On appeal, the Second Circuit examined whether Vasquez was "found in the United States" within § 1326 when he was on Canadian soil and/or when he was involuntarily returned.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Vasquez) | Held |
|---|---|---|---|
| Whether "found in the United States" requires discovery by authorities and knowledge of illegal status | "Found in" ≈ present in U.S.; no special discovery requirement | Crime requires authorities to discover and be or become able to discover illegality | Court: Requires discovery (adopts Rivera-Ventura/Acevedo framework) |
| Whether Vasquez was "in" the U.S. when "found" despite physically being in Canada | Vasquez never left U.S. for § 1326 purposes; continuous legal presence fiction applies | Physical departure to Canada removed him from being "in" the U.S.; he was not "found" in U.S. until returned | Court: Rejects Ninth Circuit fiction; physical departure means he was not "in" U.S. when initially encountered by CBSA |
| Whether involuntary return/official restraint permits § 1326 "found in" conviction | Continuous-offense theory: prior voluntary presence plus later discovery suffice | Involuntary return defeats mens rea; must be voluntary presence when found or result of last voluntary return without intervening departure | Court: Conviction cannot stand—Vasquez was returned involuntarily and mens rea not proved |
| Whether statutory gap would let the defendant escape all prosecution (policy concern) | Criminal liability needed to avoid untenable loophole; adopt broader reading | Narrow reading consistent with mens rea and notice; Congress may legislate otherwise | Court: Policy concerns insufficient to override mens rea/actus reus limits; reverse conviction |
Key Cases Cited
- United States v. Rivera-Ventura, 72 F.3d 277 (2d Cir.) ("found in" depends on authorities' discovery and knowledge)
- United States v. Acevedo, 229 F.3d 350 (2d Cir.) (crime complete when authorities discover alien and could discover illegality)
- United States v. Williams, 733 F.3d 448 (2d Cir.) (discusses discovery requirement for § 1326)
- United States v. Ambriz-Ambriz, 586 F.3d 719 (9th Cir. 2009) (held alien who was denied foreign entry remained "in" U.S.; rejected by this panel)
- United States v. Gonzalez-Diaz, 630 F.3d 1239 (9th Cir. 2011) (applied continuous-presence fiction; rejected here)
- United States v. Angeles-Mascote, 206 F.3d 529 (5th Cir. 2000) (official-restraint doctrine precludes "found in" when alien detained at port of entry)
- United States v. 1903 Obscene Magazines, 907 F.2d 1338 (2d Cir. 1990) (goods presented at U.S. border treated as entering from abroad; analog applied to persons)
- Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) (noting detainee may be in neither country; relevant to presence analysis)