United States v. Delgado-Garcia, Jose

(“We (D.C.Cir.1999) ordi do America, UNITED STATES reasoning ‘ap agency narily consider Appellee, order.’” [agency’s] nowhere pears Communications, Total (quoting Graceba v. (D.C.Cir. FCC, 1038, 1041 115 F.3d Inc. v. 1997))); Chenery Corp., v. also SEC see DELGADO-GARCIA, Appellant. Jose 67 S.Ct. 03-3067, 03-3060, Nos. 03-3068. Although the Commis

L.Ed. 1995 proffers a de sion counsel—before us— Appeals, States Court of sub of the Commission’s explication tailed Circuit. District Columbia consider we cannot interpretation, silentio Appel- too late.9 See it it comes because Argued Feb. 2004. event, such an Br. at 32-33. lee’s would conflict with interpretation implied July Decided language which calls regulation’s plain consideration, 47 C.F.R. “case-by-case” for version). 90.723(f) (1991 Storer See S.A. Labor, Sec’y 360 F.3d Sons Co.

& (“An (D.C.Cir.2004) agency’s is en regulations interpretation of its own and even deference titled substantial controlling weight unless receives inconsistent with plainly erroneous or (internal marks quotation regulation.” Secretary’s omitted)); (holding id. un regulation’s plain language inversion of reasonable).

[*] ^{[*] [*]} reasons, we reverse foregoing For the Order, order, see First the Commission’s 5428, denying of CCl’s 15 FCC Rcd reviéw review, Applica for see First Review, in D.A. reprinted tion for further consid and remand the matter opinion. with this eration in accordance So ordered. make, agency must Chenery Corp., 67 S.Ct. alone is authorized 332 U.S. at 9. See solely ('[A] judge propriety such action simple rule of but fundamental agency” and "that grounds invoked law ... is to the effect that a administrative clarity court, as to be set with such dealing basis must forth reviewing with a determina understandable.”). judgment an administrative tion or BravoCeneño, pleaded guilty to con- either illegally to induce aliens to enter spiring attempting or to bring illegal aliens into the United States 1324(a). Despite of 8 violation direct and pleas, they appeals those took now their convictions on several attack grounds. reject We their claims and af- firm the convictions.

I. plea appellants

In their admit- proffers, transport 191 Ecuado- conspiring ted their rian nationals order facilitate Ap- illegal entry into the United States. pellants attempted transport pas- vessel, sengers fishing via a 54-foot Delgado-Garcia Alexander II. José captain and Bravo- piloted ship. Axam, Federal Public Tony Assistant mechanic. Prado- ship’s was the Ceneño Defender, argued appellants. cause for Morales was crew member. Kramer, A. were him on the briefs J. With ship’s voyage began May Defender, Virg- and Joseph Public Federal off-shore position from a some distance Asiner, by the appointed Mona ilio and Elena, ap- Ecuador. plan from Santa Bennett, E. Assistant Federal court. Iris transport was to the Ecuadorians parently Defender, appearance. Public entered Mexico, ship to and the Ecuado- on the Goodhand, At- Assistant David B. by land to enter the United States rians appellee. torney, argued the cause for there. On or about June from C. him on the brief were Roscoe With helicopter Navy sighted Jr., Howard, Attorney, John R. Fish- recog- coast and off the Guatemalan vessel III, er, and M. Roy W. McLeese Jeanne Upon the being it as overcrowded. nized Attorneys. Hauch, Assistant U.S. vessel helicopter, approach no displayed The vessel сhanged course. SENTELLE, RANDOLPH Before: flags, had at running lights, no flew ROGERS, Judges. Circuit on the deck. passengers visible least Fife, Thereafter, a United the U.S.S. by filed for the Court Circuit Opinion Navy ship carrying United States Judge SENTELLE. detachment Guard law enforcement Coast Concurring filed opinion Circuit (“LEDET”), vessel, iden- later located RANDOLPH. Judge II, in interna- as the José Alexander tified waters, south of 170 nautical miles tional Dissenting opinion filed Circuit monitoring After and Mexico. Guatemala Judge ROGERS. vessel, the LEDET movements of the SENTELLE, Judge: Circuit begin received questioning, it to but hailed LEDET launched response. The Delgado- no appellants, Each of the Jose Fife, Prado-Morales, approached U.S.S. Garda, and César boat Jose vessel, attempted questioning from the United Appellants States.” claimed that boat. Migrants board the José Alexan- did not authorize the inter- der II responded questioning that they diction of the José Alexander II because it food, water, fuel; had inadequate international, was in U.S., waters when Gayaquil, Equador, had left May it, approached Fife and because the 27, 2002; and that the master and crew of crew lacked suspicion reasonable to believe ship had left before the U.S.S. Fife’s that the vessel’s engaged crew was in ille- approach. rendering After assistance and gal activity that would affect the United verifying that one of the passengers could States. Lastly, appellants argued that navigate Guatemala, the vessel to the LE- prosecuting them under violated DET advised the migrants to take the the Fifth process clause, Amendment’s due Quetzal vessel to the port at and escorted as thеre was no “nexus” appel- between Thereafter, it there. LEDET personnel lants’ conduct and the territory of the determined, based on interviews with the United States. passengers and further investigation, that January On the district court ship had been attempting to facilitate denied appellants’ motion. Shortly there- illegal immigration of passengers after, February Prado-Morales

to the United States. and Bravo-Ceneño unconditionally pleaded grand A jury charged appellants with guilty to the conspiracy count in the indict- conspiracy encourage and induce aliens ment Delgado-Gareia and unconditionally illegally States, to enter the United pleaded guilty to count. This §§ violation of 1324(a)(1)(A)(v), 8 U.S.C. appeal followed. (a)(1)(A)(iv), (a)(l)(B)(I), and attempt and ed bringing of unauthorized aliens to the in violation of 8 U.S.C. II. 1324(a)(2) (a)(2)(B)(ii). §§ and Appellants This direct appeal criminal comes to us

moved to dismiss the indictment on several in a strange posture. Appellants moved to grounds. They contended that the indict dismiss the indictment on the statutory, ment charge did not an offense under constitutional, international-law 1324(a), arguing that the statute does grounds they now raise on appeal. Yet apply not extraterritorially. Appellants they unconditionally pleaded guilty to the also asserted that their interdiction violat crimes of which they charged. were law, ed international as the José Alexander address, first therefore, issue we II, they claimed, wheth was under the exclusive er their unconditional jurisdiction pleas waived of Ecuador govern and the they claims now assert appeal. ment of Ecuador did not For the consent to the follow, reasons that government we hold that escorting that these vessel to pleas They argued, Ecuador. waived all of appellants’ additionally, that claims. However, the Fife’s government crew had authority exceeded the does not ad granted 89(a). under 14 argument vance the That the unconditional provision gives pleas the Coast Guard waived authority, appellants’ claim that 1324(a) among things, other inquiries, “make apply does not extraterritorially. examinations, inspections, searches, government sei has thus waived its waiv zures, and arrests upon the high argument seas er on that point. Cf. waters over which the Johnson, United States has States v. 216 F.3d jurisdiction, prevention, (D.C.Cir.2000) for the detection, (discussing govern suppression of violations of laws of the ment’s waiving of a procedural defendant’s subject- default). ond that the court below lacked merits of reach the We therefore case, jurisdiction over does not matter appellants’ claim jurisdiction, subject-matter lack of extraterritorially. claim of apply power “because involves a court’s appeal; claims on four Appellants assert case, hear a can never be forfeited or less, are, the same more or these claims Cotton, waived.” United States their basis of arguments that were the 1781, 1784, 625, 630, 122 S.Ct. First, the indictment. to dismiss motion (2002) (citing Steel v. Citi- L.Ed.2d 860 Co. claim that appellants reassert their Environment, zens a Better they by their substantive statute 89, 118 140 L.Ed.2d violating, 8 U.S.C. pleas admitted (1998)). 1324(a), extraterritorially, does to them this case. and therefore not into еi- appellants’ None of claims falls Second, argue govern- appellants exceptions. As sub- ther of these prove committed ment failed ject-matter jurisdiction exception: there is effects crime with question no district court had a “nexus” prove did not therefore subject-matter jurisdiction over appellants’ the Unit- appellants’ conduct and between argument to the Appellants’ case. best claim the Fifth Amend- ed their the in- contrary rests on claim that requires. clause process ment’s due offense, to state an which dictment failed Third, prosecu- assert that their appellants they claim the district court of deprived 89(a), for the tion 14 U.S.C. violated subject-matter jurisdiction over them. Final- they asserted below. same reasons apparently agrees with government The apprehen- claim that their ly, appellants purported that this defect appellants international law customary sion violated the district court’s indictment concerns is treaty to which the United States subject jurisdiction over appellants’ matter party. case, rather than the merits the case. III of Under Article agree. all of these We do Appellants waived Constitution, judicial power guilty unconditionally. “[t]he by pleading claims is ... in such States” “vested pleas that are know guilty Unconditional - may from time no claim inferior Courts as ing intelligent and there is Const, - Ill, art. establish.” otherwise time U.S. appellants’ pleas were original jurisdic § 2. Congress conferred pleading claims of waive defendants’ appellants’ court over tion on the district appeal, еven constitutional claims. error on That See, Drew, enacting 18 200 F.3d case United States v. e.g., 1948, 62 (D.C.Cir.2000). statute, originally see passed are There two 876 courts provides the “district to this rule. The Stat. recognized exceptions original shall have of the United States right first claimed “not defendant’s all all;” example, against ... of offenses jurisdiction haled into court at ordinary laws the United States.” The offense violates charged a claim that the “jurisdiction” Blackledge meaning of the term clause. v. jeopardy the double to a 21, 30-31, passed statute was referred 94 time that Perry, 417 S.Ct. adminis (1974); power “declar[e] see court’s 40 L.Ed.2d 628 also York, The Oxford En justice.” law or 5 62-63 & ] Menna v. New 423 U.S. ter! (1933); see Web 241, 242, Dictionary 635 also glish 46 n. S.Ct. L.Ed.2d 195 96 curiam). Dictionary (1975) International Third New (per This is the so-called ster’s identifies “of- The sec- Section “Blackledge/Menna” exception. against laws of Finally, appellants’ fenses Fifth Amendment “law” States” as the relevant over claim is irrelevant to the court’s Article III (or “jurisdiction”). “power” subject court has jurisdiction. matter The Constitu- that law includes the power The declare solely tion its terms leaves it to Con- whether power decide the offense gress by statute, that power allocate offense, for, charged is a true as Justice and there is no claim in this case that this ago, that long power noted re Holmes jurisdictional grant indepen- somehow whether the court’s mains “decision” dently unconstitutional. (in instance, judg this the court’s law Precedent our bolsters conclusion ‍​​‌‌​‌‌​‌‌‌​‌​‌‌‌‌​​​​‌​‌​​​​​​​​‌‌‌​‌‌‌‌‌‌​‌‌‌​‍that “offense”) right ment as “is sufficiency the substantive indict Lamar v. wrong.” question ment is a goes to the merits 60, 65, L.Ed. 526 case, of the than rather the district court’s (1916) objection (noting that that the “[t]he subject-matter jurisdiction. charge indictment does not a crime Cotton, Court’s decision in United goes to the merits 122 S.Ct. 152 L.Ed.2d juris case” rather than the court’s (2002), supports conclusion. diction). subject mat district court’s There, the Court held that the failure of an jurisdiction ter in this case therefore sentencing indictment to state a element power cluded to decide whether the required to jury be submitted to the charged proper indictment “offense.”1 proven beyond a reasonable doubt was not statutory None or constitutional jurisdictional required defect that auto provisions appellants cite the dis- divested matic reversal of the conviction. Id. at jurisdiction original trict court of its under 630-31, 122 at S.Ct. 1784. “Defects appel- 3231. The substantive statute deprive indictment do not a court of its pleaded guilty violating, lants to 8 U.S.C. power adjudicate ease,” to a the Court 1324(a), does so much not as mention explained; the issue of the indictment’s “jurisdiction.” treaty the court’s to sufficiency goes substantive instead to the - appellants which point us The Conven- merits. Id. also at We note that least two - High tion on the Seas does state that circuits have that question held the of an “ships that sail the of flag under one State indictment’s failure state an offense is subject ... shall be to its exclusive an issue goes case, that merits a

jurisdiction on seas.” high Convention subject-matter not district court’s ju Sea, 30, 1962, Sept. On Law of art. Gonzalez, risdiction. See United States v. 6, 1,§ 13 U.S.T. 2312. “Jurisdiction” in (1st 440, Cir.2002), 311 F.3d 442 cert. de sense, however, general refers to the - nied, -, 47, U.S. 124 S.Ct. 157 authority government of the U.S. over the (2003); L.Ed.2d 49 United Stаtes v. issue, including ship at the executive Brown, (10th 164 F.3d 520-22 Cir. authority, power not the branch’s 1998). particular district court in prosecu- over arising tions out of the executive’s asser- appellants’ Nor do fall claims into tion authority. “jurisdic- second, of such The term Blackledge/Menna exception. way tion” also used in this in 14 exception U.S.C. That right concerns the of defen 89(a), and in customary international dants “not to be haled at into court all” as law appellants doctrines to which us. point phrase that in Blackledge was used v. Per- express 1. We legal no ing inadequate view what remedies having counsel after pleaded guilty. would available to assert- such defendant

1343 process is a claim that the due 40 L.Ed.2d assertion 94 ry, 417 U.S. S.Ct. York, (1974), 423 limits the substantive reach of the v. New clause and Menna 628 1324(a), 195 L.Ed.2d conduct elements of 8 U.S.C. 96 S.Ct. curiam). (1975) the case in Perry, power not a claim that court lacks (per excep applied this them at Even if the bring first to court all. the state tion, appellants a defendant whom Fifth prosecution involved violated of misde reason, had convicted appellants of North Carolina for this Amendment six-month sen given assault and meanor still need to come “court to an- filed notice the defendant his tence. After charge brought against” swer the them. conviction, that the state appeal at at Blackledge, S.Ct. obtained an indictment prosecutor 2103. charge felony assault based him on event, that assuming appel- even gave rise to the conduct same Fifth claim concerns the lants’ Amendment 22-23, charge. 417 U.S. at misdemeanor appear, оf the court force them to power Perry pleaded guilty at S.Ct. that claim still is waived. The indictments charge, but later claimed alleged clearly appellants intended to due-process violated his charge second United, into the smuggle, aliens him charge penalized rights because the thereby ap- While causing effects there. statutory right appeal. exercising his beyond the pellants would have us look 2100-01. The Id. at S.Ct. underlying sur- indictment facts Perry’s guilty Supreme Court held Alex- rounding the interdiction the José claim, due-process plea did not waive his nexus, ander II show-the absence Perry’s claim constitutional because constitutional arguable there was no facial “went to the prosecutorial vindictiveness indictment, the Black- infirmity [Perry] bring of the state to very power exception ap- does not ledge/Menna waiver brought charge into court to answer Broce, States v. ply. See United Id at 2103. against him.” 757, 765, 102 L.Ed.2d 109 S.Ct. reasoned, right, the Court was the upon into court all “right to be haled reasons, For as a matter these felony charge,” implicat therefore ’ legal appellants guilty procedural injury pure principle, ed the “distinctive” con “to a trial all of their claims. That right prevent pleas waived all” Id at of all of taking place protects. dispose is sufficient to clusion

30-31, 94 at 2103-04. The Court them appellants’ appeal, claims on save for 1324(a) Blackledge excep that the not later clarified does claim that claims. jeopardy However, tion to double extraterritorially. apply Menna, S.Ct. at 242. U.S. at for strangely “assumes government’s briеf not appellants present purposes” injury appellants’ The associated with to extraterritori waived their claim as comparable injury to-the claims not 1324(a). govern The al Blackledge in Supreme Court identified waiyer argu its ment has therefore waived Appellants’ only constitution- and Menna. v. point. on that See ment violates prosecution al claim is that their Johnson, supra. process clause Fifth Amendment’s due specific actions at- “none because III. caus- were aimed at appellants tributed us government’s impels concession within the United ing criminal acts criminalizes That decide whether Appellants Br. for States.” appellants’ extraterritorial conduct. primarily We concerned with domestic condi- hold that it does. Filardo, Foley tions.” Bros. v. 336 U.S. 281, 285, 69 S.Ct. 93 L.Ed. 680 Appellants pleaded guilty to two distinct (1949); see also Smith crimes. PradoMorales and Bravo-Ceneño 206-07 n. 113 S.Ct. pleaded guilty conspiracy to encourage 1184 n. L.Ed.2d 548 This and induce aliens illegally enter the presumption embodies sensible contextual United States. The statute that defines linguistic reasons reading the plain prohibits conspiring crime texts of domestic apply statutes or encourage[ ] an alien induee[ ] everywhere the world. Because Con- to, enter, come or reside gress’s primary arena sovereignty States, knowing or in disregard reckless territorial United it makes sense to to, coming of the fact that such entry, or presume, evidence, absent other is or residence will be in violation of law. linguistically commands apply there. 1324(a)(1)(A)(iv),(a)(1)(A)(v)(I). 8 U.S.C. Therefore, we presumptively read the text crime, Delgado-Gar- second to which congressional not to apply statutes ex- da pleaded guilty, is attempted bring traterritorially, unless are there contextual ing of unauthorized to the aliens reading reasons for the text otherwise. States. The statute that defines that provides: crime out, points As the dissent the presump- tion, Any person who, knowing or in and indeed underlying reckless proposition disregard of the Congress legislates fact that an alien has primarily with do- prior not received official mind, authorization mestic in part conditions makes to, enter, to come or reside sense Unit- because we that Congress assume States, brings ed attempts to bring desires to avoid conflict with other nations. any United States in manner helps explain That why presume we stat- whatsoever, alien, such regardless apply utes not to extraterritorially, unless official action which may later be taken there are contextual for reading reasons alien, with respect to such for each alien reasons, the text otherwise. Contextual in respect to whom a violation of this view, supply our “affirmative evidence” paragraph occurs the Supreme Court requires to overcome 1324(a)(2). presumption. commits a federal crime. Id.

Both of these statutes suggests ex- The dissent our discussion traterritorially. Appellants’ argument that presumption conflicts with dictum they do not invokes the presumption D Maintenance, Kollias v. & G Marine against (2d reading Cir.1994). statutes to have extraterri 29 F.3d 67 Dissent at 1353. See, torial e.g., effect. fact, Sale v. agree Haitian we with thе Second Circuit’s Council, Inc., (which Centers statement was not essential to its 2549, 2559, 113 S.Ct. 125 L.Ed.2d holding, 128 as the court that held the statute (1993); Co., EEOC v. question Arabian Am. Oil did in apply fact extraterritori- 244, 250-51, U.S. 73-75) ally, statutes, S.Ct. id. at that “all without (1991). L.Ed.2d 274 presumption, This exception, [should] be construed to apply understood, properly not does mean that within only, the United States a unless 1324(a) criminalizes contrary domestic con appears,” intent id. at 71. Our duct. The presumption against point extraterri is that contextual factors show that torial application of domestic statutes “is had a contrary intent in this based on assumption that Congress is case. a reach outside the borders of embodies not those presumption

The is overcome affirmative reading States against statutes United caution sensible congressional in- contextual evidence U.S. borders. apply outside to lightly convention, expect it It is natural that statute depends tent. any linguistic Like the borders of the protects that assumptions. real-world contingent on States, statutes, ordinary unlike domestic concerns “behind” policy point It reach those outside the borders. applying statutes would against presumption that presume no such is that makes sense effect extraterritorial domestically. applies only We ordinarily under statute that a court should mean that whether a stat- only agree with the dissent apply commands Congress’s stand extraterritorially is a borders, apply ute should not a court within 1357-58; Congress, judgment dissent apply policy itself those concerns should point this contextual feature the statute based our is and read the case at bar judgment Congress is the analysis. shows this policy its own the result of 1324(a). states, made in Because, correctly the dissent “[djecisions subject foreign about when simply But more the fact that this than to the Unit foreign conduct nationals and is international focus shows statute questions of invoke delicate laws ed States’ There extraterritorially. is also applies it international relations” jurisdiction and that, as evidence the Su- specific textual lack “courts ... and because Court observed United States preme exec expertise legislative of the policy Bowman, “the natural inference from branches,” must dissent at we utive ex- of the offense[s]” character to inter the canons construction apply probable be a traterritorial location “would rewrite, congressional acts. not pret, place for commission.” [their] However, for con examining the statute 39, 41, 67 L.Ed. 149 43 S.Ct. ap intention extraterritorial gressional strengthens our conclusion That evidence contextual consider both plication, we that, context, crimes read these analy what our That is textual evidence. conduct. represents. sis below in Bow- Supreme Court’s decision infer- context, supports validity of this man

Read in which the face, Bowman was case it ence. extraterritorially. On its concerns crime concluded that the Supreme Court merely than “domestic condi much more in which the corporation defrauding the borders of protects tions.” It applied States was against illegal immigration. United a.stockholder 102-03, abroad. Id. September U.S. citizens the tеrrorist attacks of As Bowman, acknowledge, country’s we starkly, reminded us directly involved point. im Bowman of crucial policies are border-control U.S. citizens who were security for criminal defendants national portance was fraud regard offense eign policy of 41; 43 S.Ct. at id. at possible, in an United less whether would be contrast, case, involves aliens in sense, protect our us this to borders abstract differences, These immigration This contex ing domestic measures. offense^. however, force 1324(a) not lessen Bowman’s do establishes tual feature of difference, international, first to this case. The simply applied fundamentally not is defendants, irrele- is citizenship of domestic, pre and effect. The focus hold- qualify did While Bowman Congress’s commands do vant. sumption no by noting that aliens were before ing Corporation engage would in extensive Court, logic not depend Bowman’s did operations. However, overseas there is on this fact. The Bowman Court’s reason- every reason to think that much of the pointed more than ing 1324(a) much that. was conduct that ‍​​‌‌​‌‌​‌‌‌​‌​‌‌‌‌​​​​‌​‌​​​​​​​​‌‌‌​‌‌‌‌‌‌​‌‌‌​‍criminalizes occurs the fraud noted statute beyond the borders the United States. prosecution in under which the Bowman In reaching its conclusion that the fraud proceeding was amended to statute it in applied before Bowman extra- protection, extend its theretofore limited territorially, Court recited government departments, “any cor- statutes, several not expressly other terri- poration which the United States of torial, might by very but which nature America is a stockholder.” From the tim- of the crime be suрposed ap- outlawed amendment, ing of the the Court reasoned ply these, extraterritorially. Among Chief protect intended to Taft, Court, Justice the pun- noted Emergency Corporation. Fleet Id. at 101- ishment of a knowingly consul who certi- 02, 43 S.Ct. at 41. The Court therefore invoice, fied a false the forging altering or criminalizing concluded that the statute ship’s papers, of a enticing of deser- corporation defrauding applied a U.S. ex- service, tions naval bribing and the traterritorially Emergency because the civil, a United States military, officer Corporation, a corporation, Fleet U.S. these, naval service. all As to the Court expected in, engage “was and did en- Congress “clearly” noted that intended the in, gage transpor- most extensive ocean foreign locus of crime be in coun- Id. at tation business.” 43 S.Ct. at 41. tries, seas, the high or otherwise extra- expectation, Because this Court rea- territorial. 260 41. soned, many persons who commit short, Bowman is a persuasive most defrauding corporation crime precedent for a conclusion that overseas, do so therefore the applies extraterritorially. application. had statute because, is analogous Bowman therefore The dissent’s distinguish below, fully as discussed more the same Bowman other respects unpersuasive. is 1324(a). §of expectation For holds these opines The dissent Bowman distin- reasons, disagree we with the dissent that guishable case, because unlike this Bow- the fact that Bowman involved U.S. citi- man other internationally focused zen as applied lessens its forcе to this statutes concern crimes that would “harm case. Dissent at government the United States even if [they abroad,” completed were] dissent at The second main difference between this - case, and because in this the harm is case and Bowman that this case involves “less direct and less immediate.” Id. immigration offenses rather than frauds - policy Such reasoning Congress, is for against the not shows that Court, in Anyway, the first instance. greater Bowman even with force 1324(a). it is difficult to see how the against Fraud harm threat- by attempted illegal ened necessarily immigration does concern than, national less “direct and security say, affairs of immediate” 1324(a). of conspiring unlike crime More- commit terror- over, there is no reason ist act why against obvious American target. The simplici- frauds border-control statutes here issue are ter, overseas, would occur apart logically dependant from the “not locality” their expectation that Emergency Fleet the same sense that the fraud offense attempts. that It punishes not in Bow- it results States against the United transport- that the crime involves many extraterri- fact they have obvious man: ing aliens into the United States. applications. torial provision applicable The Bowman, forfeiture in at issue Like the statute 1324(a) § that the inference bolsters 1324(a), terms, to much applies § 1324(a) extraterritorially. It § conduct. Subsections extraterritorial provides: (a)(2) (a)(1)(A) both vessel, conveyance, including any “to bring” Any aliens “attempts

proscribe vehicle, aircraft, is incomplete at- which has been or Many or the United Stаtes.” commission of a viola- juris- being the territorial used occur outside tempts (a) this “Bringing” tion of subsection section shall of the United States. diction - subject entry phys- least seized and to a forfeiture. be suggests someone will not an alien proximity. ical Because 1324(b)(1). § this 8 U.S.C. breadth of is attempt if the States be United provision strongly suggests that subsection ordinarily will the offender incomplete, (a) application. has extraterritorial itself during the United States also be outside Vessels, vehicles, and aircraft used in com- gov- if the This is true even attempt. (a) mitting are of- violations subsection attempts at many incomplete ernment foils internationally, transporting ten used That of the United States. the borders illegal immigrants requires movement into the attempts bring someone many Therefore, country from one to another. will occur outside 1324(b)(1) ap- itself has extraterritorial these strongly suggestive is unlikely It plication. seems as a neighbors apply, and their subsections government power to give would broad ordinary to extraterri- language, matter of conveyances illegal to effect seize the used reason, disagree For this we torial acts. (b)(1) immigration subsection without 1324(a) text of with the dissent that the simultaneously conferring power, domestic purely amenable equally (a), op- punish the offenders subsection Bowman. reading light internationally. conveyances erating those not, giv- example, would argument Appellants’ response this power ships en to seize the executive counsel at oral Appellants’ not persuasive. con- possible if not abroad it were also of- argument argued any substantive abroad, and ships operating vict those may joined attempt with an stat- fense con- statutory canon of is a traditional therefore, claim, ute; reasoning statutory pro- construe related struction to presumption eviscerate reasoning Our fashion. visions similar statutes, application extraterritorial “circular,” is, therefore, not this score could have statute since substantive 1357; point our is that such dissent by being application simply textually strange light reading would be fact, attempt joined with an statute. (b)(1), as the independent fact sweeping no such holding our will create deny, applies does not extraterrito- dissent attempt provisions precedent. 1324(a) Reading § to have extra- rially. 1324(a) have extraterritorial application thus harmonizes territorial crimes, but they are not because provisions. these related out- will often be rather because offenders encouraging Finally, prohibition they attempt side the States when immigration, inducing illegal of or the crime. This feature commit 1324(a)(l)(A)(iv), many has natural fact also not result from the does 134 applications.

extraterritorial Certainly Similarly, the statute in Arabian Oil Co. possible potential to induce a illegal “boilerplate” involved language “which can immigrant to come to the United found in congressional number of Acts, the United appel- within none of which have ever been held to emphasize, lants and dissent apply but it is overseas.” at much obviously easier to do so when S.Ct. at 1231. objective The evidence of proximity immigrant. It is also extraterritorial application the Court found possible conspire there, to induce illegal immi- lacking in contrast, is present gration 1324(a). into the § United States from any- 1324(a) The language world; but, again, distinctive, where it is easier not boilerplate, applies to a to do outside so in great many acts that one customarily proximity carry those who out plot. would expect occur overseas. This therefore its terms con- The Supreme Court’s recent decision in templates application to much extraterrito- F. Roche Ltd. Empagran Hoffman-La rial conduct. —S.A., -, 124 S.Ct. (2004), L.Ed.2d dissent is not Nothing Sale and Arabian Oil Co. contrary. Empagran was an inter- 1324(a) compels the conclusion that ap national price-fixing antitrust suit plies only domestically. Those decisions several foreign and domestic vitamin man- very involved different statutes. Although ufacturers and distributors. Id. at 2364. statute, Sale immigration also involved an The Court held plaintiffs’ suit failed to crucially statute was different from state a claim under statutes, U.S. antitrust 1324(a). Sale, The statute in 8 U.S.C. assuming plaintiffs’ suit alleged 1253(h), governed deportation proceed anticompetitive international effects that ings. Court, quite apart from the completely were independent from any ad- presumption against appli verse domestic effects. Id. 2366-72. cation, provision, by terms, read this its rejected The Court plaintiffs’ argument apply only deportation to domestic pro the “more reading” natural of the ceedings and “contemplated that such pro statutes was that could state a claim ceedings country,” would be held solely effects, based such because of the specifically statute referred to the At presumption against applying statutes ex- General, torney official, a domestic and the traterritorially and because the Court read Attorney General was not authorized to to permit, statutes but not require, deportation conduct proceedings outside of either a or domestic reading. Id. the country. 509 U.S. at 113 S.Ct. at 1324(a) contrast, § 2559. In is not funda mentally focus, domestic in but has a great rejection Court’s plain- many international applications.2 tiffs’ argument is with consistent our tex- 2. The Sale Court stated that even if it language did not specifically referred to the Attorney General, read act apply only official, terms a domestic and that "strictly procedures, domestic presump- applied presumption to that statute written, tion that ordinarily Acts do not as it was hypothetical not to some support” outside our borders statute that omitted point those words. Our purely interpretation domestic of the relevant is that very these words are different from the statute. 509 U.S. at language 113 S.Ct. at 2559. statute at issue here and language Even if the of the statute did not therefore that our of the presump- apply solely procedures,” to "domestic how- compels tion conclusion ever, change that does not the fact that this to extraterritorial conduct. 1324(a). in En- Empagran, explicitly the necessary specify § analysis of tual “trafficking in con- Act that analy- of forcement purposes for assumed the Court is a trolled substances aboard vessels seri- foreign alleged con- plaintiffs’ suit sis that problem.” U.S.CApp. ous international what- nexus lacked domestic duct that § international focus of 1902. The acknowledged that soever. 1324(a), contrast, in § is more obvious. long application held that “our courts that, appellants are correct Although foreign anticompet- antitrust laws of our Congress language uses different in where reasonable, is nonetheless itive conduct provisions, similar it is wise otherwise principles the of with and hence consistent that presume means different as reflect comity, insofar prescriptive 1324(a) things, § and the Enforcement Act to redress domestic an- effort legislative sufficiently otherwise similar to are anticompetitive injury that titrust reasoning. invoke that id., (quot- at 2366-67 caused.” conduct has Co., v. Aluminum ing holding recognize that our the We Cir.1945) (2d (L. Hand, F.2d 443-44 the application of cases, J.) (citing, among other 1324(a) Yenk § conflicts with provisions Bowman)), no ex- v. though even States v. United ichi Ito 64 F.2d in laws made such language those press Cir.1933). (9th The Ninth rested Circuit long- unlawful. That foreign conduct holding assumption on its that “there that the antitrust standing recognition 1324(a) in indicate that nothing ] [§ foreign conduct that apply to such laws to be effective out Congress intended it our supports affairs impinges on domestic limits of recognized of the territorial side us, as of the statute before interpretation States.” Id. As we have dis us have such effects. the offenses before cussed, disagree. we persuaded by appellants’ colleague Nor are we relies on the dissenting Our 1324(a), to the Maritime § citation history dissent’s dissent at legislative Act, Enforcement Drug Law act congressional the 1903 citing §§ This act criminаl- U.S.C.App. 1901-03. attempt provision that added distribution, manufacture, 1324(a) of that act § izes and the recodification substances, and possession nothing of controlled that there is arguing in acts. to extraterritorial explicitly applies “suggests] history in this (h). 1903(a), § Id. Appellants argue, ‘attempt’ term substitution this stat- repeats, bringing that because expand dissent intended to ‘aid’ was 1324(a), yet explicitly §to extraterritorially,” ute is similar at 1359. dissent offense little, infer extraterritorially, we should light in of the proves Such silence discussed, explicit that, of the same evi- absence fact as we have 1324(a) does not it statement from the text apparent dence extraterritorially. 1324(a). same can be said legislative cites silence the dissent surprising that Con- do not find We history encouragement/inducement of the explicit language gress to use more chose 1324(a). at 1359- §of Dissent provision specifying extraterritorial Act Drug Law Enforcement Maritime 1324(a). Second, points out that the dissent A border-control than it did decision in handed down its a Ninth Circuit than is outward-looking is more statute Ito and that manufacturing. That Yenkichi drug prohibition on un- attempted to correct it has nowhere why Congress thought also may well be amendments subsequent derstanding Citing 1359-60. Appeals two Court of 1324(a). cases, at 1359-60. ar Dissent This letter, Depart- we read the one, two gument fails on fronts. For opined ment encouragement/in- decided United Supreme Court ducement “is the 1922, a that the Ninth Bowman case only provision in that [that section] has cite, so it is Circuit did not unclear wheth application.” extra-territorial H.R.Rep. silence of Congress’s er was the result its No. at 112 pt. Putting to plain understanding textual evi piece one side that this of history contra- supplied already dence had made dicts the dissent’s conclusion that the en- application of extraterritorial the statute couragement/inducement section does not reasoning clear under of Bowman. application, have extraterritorial think we another, elderly Ap For other Court of it does proposition not stand for the cases, peals including Ninth cases the encouragemenVinducement provision Circuit, long closely held the related 1324(a) §of applies only domestically. capable of the inducement section statute only Department The support the offered application. glar of extraterritorial Most opinion for its was a citation to two the Fifth held ingly, Circuit as much cases, Appeals of both of which held v. United 26 F.2d Claramont 797 that the encouragement/inducement provi- (5th Cir.1928) curiam), that, (per decision 1324(a) § sions of did not have extraterri- Ito, the law like Yenkichi was of a circuit Nunez, application. torial (citing See id. governed large whose decisions portions of Castillo-Felix, therein”). and “cases cited the U.S. coast. See also United Those and cases the cases those cases (1st Nunez, Cir.1981) 668 F.2d 12-13 cited, however, nothing said about whether curiam) (same, Castillo-Felix)-, (per citing 1324(a) attempt provision of had ex- Castillo-Felix, United States v. F.2d application. traterritorial In light of that (9th Cir.1976) (same, 12-13 citing Bow silence, Department we think that the man); Correa-Negron, States v. merely stating opinion its that no cоurt (9th Cir.1972) 462 F.2d cu (per cases have held the provisions to riam) Claramont). (same, citing There application. have extraterritorial It was fore, the of the dating state law from 1922 stating interpretation official of on the extraterritorial of 1324(a). give piece We therefore this 1324(a) is, best, ambiguous, and at legislative history weight. little worst, contrary position to the dissent’s Congress’s view of Bowman. silence on close a concluding We with observation point support does not thus the dis the alarming on consequences the dissent sent’s reading of statute. holding. sees our Dissent 1361-62. The

Third, specter dissent raises the that our single the dissent cites sentence holding extraterrito- Department from letter from the of Jus- rially creating risks commenting on conflicts with laws tice the current version nations, of other Immigration that we should not do Control Act of given foreign so our lack of pending policy exper- then before the House Committee discussed, Judiciary, As which the tise. we have Committee we have con- analysis appended House fined our Report interpreting to a bill. Department The dissent says light said words presump- in this sentence that it “would not tion prose- application, attempted cute the bringing foreign out- not policy analysis. offense But it worth that, side event, United States.” Dissent pointing any out our holding ROGERS, Judge, dissenting: creating Circuit risk of pose significant does not we lack conflict. While such today interprets provi two court branch, the executive expertise, the policy Immigration Nationality sions primarily concerned of government branch criminalizing Act as conduct outside of and the branch foreign affairs with by foreign nationals. 1324(a), administering has with charged so, doing the court clear instruc ignores practical consequence spades. it in Court that tion from Con merely question to leave the holding our clearly must state its intention gress navigate potential con- best to such how extraterritorially statutes executive, organ of “the sole flicts interpret ambigu courts are to otherwise in- in the field of government the federal territorially limited. Con ous statutes as v. relations.” United States ternational clearly not its intent to gress has stated 304, Export Corp., 299 U.S. Curtiss-Wright bringing and the en apply attempted 220, 216, 320, 81 L.Ed. 255 57 S.Ct. provisions of 8 couragement/indueement prosecu- exercise of expert executive’s extraterritorially § 1324 order foreign diplomacy and torial discretion borders, and protect United avoid the more than sufficient to should be provi and of the two operation structure holding our thinks conflicts the dissent sions, implicit in which this court finds creating. risks application, command of extraterritorial limita with the territorial

are consistent generally of statutes. presumed tion that is IV. Moreover, legislative history is clear Although that “the the dissent believes attempt did not intend statutory per- text that of a combination apply bringing provision to outside ed require extraterritorial mits but does jurisdiction United States. territorial legislative history and a silent “af Accordingly, there is no clear because a court to enough is not basis a evidence,” v. Cen Sale Haitian firmative extraterritorial- apply” a statute decide Council, ‍​​‌‌​‌‌​‌‌‌​‌​‌‌‌‌​​​​‌​‌​​​​​​​​‌‌‌​‌‌‌‌‌‌​‌‌‌​‍155, Inc., 176, 113 ters 509 U.S. 1361, the textual evi- ly, dissent at same (1993), 2549, 2561, 125 L.Ed.2d S.Ct. Supreme Court Bow- used dence against apply the presumption overcome 1324(a)’s international focus man and extraterritorially, indict ing a statute reasons, For those two suggest otherwise. 1324(a)(1)(A)(i), §§ ments under 8 U.S.C. above, appellants’ expressed others (a)(1)(A)(v) (a)(1)(A)(iv), should are affirmed. convictions dismissed, respectful and I therefore been ly dissent. RANDOLPH, Judge, Circuit

concurring: I. has long upheld Court join opinion except

I all of court’s “legis statutory construction by pleading guilty defen canon statement intent Congress, contrary to lation unless claim that the offense dant waives only within the apply guilty appears, he is not a crime. meant pled Unit (D.C.Cir. Idowu, jurisdiction the 105 F.3d 728 territorial ed States v. American Oil v. Arabian 1997), contrary to the States.” EEOC suggests a view Co., 1227, 1230, 248, 111 S.Ct. nor 499 U.S. court’s. The issue was neither briefed (1991) Foley (quoting and, 113 L.Ed.2d 274 for the reasons the court argued Bros., Filardo, Inc. 336 U.S. gives, did not need be reached. (1949)). 575, 577, 93 L.Ed. language,

S.Ct. ized or the opinion recent Sale, cases, two recent 113 Empagran, indicates that Court 125 L.Ed.2d Arabian doing anything than announcing, other Co., 248-59, American Oil U.S. at 111 strengthening, generally applicable rule re-emphasized has S.Ct. at statutory construction. longstanding presumption this uncom court, however, This now reaches a hold promising laws terms: are deemed to ing effectively eviscerates this instruc jurisdiction the territorial within tion. Treating the canon nothing more unless pro than a “linguistic” “contextual rule” or vides “affirmative evidence” to the con principle, presumption states Sale, trary. See 509 U.S. at 113 S.Ct. against extraterritoriality can be overcome at 2561. Such evidence be “clearly must so long there are “contextual reasons” Co., expressed.” Arabian American Oil for disregarding it. Specifically, 111 S.Ct. at 1230. While principal court’s argument is that the can roots, part the canon in has as this court on’s requirement of “affirmative evidence” notes, Opinion recogni see is satisfied when a statute concerns “more tion primarily that “is concerned ” than merely ‘domestic conditions.’ Op. conditions,” with domestic Arabian Ameri words, at In 1345. if other a statute deals Co., can Oil 499 at 111 U.S. S.Ct. at subject with a area that is not purely 1230, it also reflects “the desire to avoid domestic, reasons, the provides court conflict with the laws of other nations.” indicating the “context” Congress’ intent Sale, 509 U.S. at 113 S.Ct. at 2560. to apply the extraterritorially. statute See subject foreign Decisions about when to id. cramped This view of the canon is to foreign nationals and conduct the Unit circular, making applicability depend its in ed questions States’ laws involve delicate the first instance on whether a statute is jurisdiction of relations, and international “domestic” when that is the question that courts, and which lack the policy application of canon supposed the is expertise legislative of the and executive Moreover, resolve. the court’s “contextual branches, carefully must tread and err on reasons the reading text otherwise” the of limiting side statutes domestic in jurisprudence standard lacks a basis the application if there is doubt as to Con Court, Supreme the which has stated gress’ intentions. This Term the Supreme that overcoming standard for the can re-emphasized Court in F. Hoffman-La — against extraterritoriality S.A., higher is Empagran Roche Ltd. v. Sale, evidence,” hurdle of -, --, “affirmative 509 124 S.Ct. at at (2004), S.Ct. and must L.Ed.2d 226 that it be “ordinarily con “clearly expressed.” ambiguous Arabian American strues statutes to avoid unrea Co., Oil 499 U.S. at at sonable with S.Ct. sovereign interference au premise The court’s that a thority of other nations.” If a statute is non-domestic subject and itself reasonably permits supplies unclear the “affirmative read evi ing canon, it dence” territorially, sufficient to overcome the court abroad, Op. should not it see at in apply read is direct conflict with Circuit, even if doing might so the Second explained “the more natu which in Kol reading ral statutory Maintenance, of the lias & language.” v. D G Id. Marine (2nd at Cir.1994), 2372. Nothing Supreme F.3d Court’s in light opinions in Supreme Sale and Arabian American Court’s recent decisions that Oil, both of which used general- require statutes, broad and “seem to that all without Furthermore, holding the court’s within be construed exception, by a the canon can be overcome statute’s contrary in- only, unless a Sale, contrary focus runs non-domestic (as in the statute at did appears” tent distinguish the case seas,” issue, id. high “on applied which unconvincing. Op. See at 1347-48. 73-74), subject mat- at that a nondomestic Sale, canon applied inapplicable to render ter does not suffice Na provision Immigration to a extraterritoriality. Id. the canon (“INA”) in tionality Act order to deter (emphasis original). While certain at 71 mine, here, Act applicability (such Immigration as the subject areas high to aliens interdicted on the seas. Act, Nationality at issue Sale highlights applicability case the wide case, or maritime law as the instant canon, well as how the hurdle of high Kollias) is more may imply evidence” is. The “affirmative concerned with domestic “primarily than prohibited the “return” issue Sale Co., conditions,” Oil Arabian American asylum refugees giving before them do hearing, implement part prudential con- nothing to alleviate the Relating to Nations Convention Status canon, cerns embodied Refugees, which has rat the United States today ignores. court treaty defining of a Implementation ified. obligations respect the United States’ with prudential concerns behind refugees hardly a “domestic condi significant in the are particularly canon tion,” notwithstanding this court’s valiant context, the extraterritori- criminal where at Op. it as such. to frame See of criminal law of the al the against 1347-48. Absent the canon extra may conduct United States criminalize inference,” Op. territoriality, the “natural it is legal in the countries which that is 1345, reading,” Empa at or “more natural committed, correspond- providing without — 2372, at -, 124 U.S. S.Ct. at gran, un- protections against ing constitutional if for that the United States is would be seizures, the and and reasonable searches treaty refu “returning]” bidden stage. the U.S. use of force at arrest Cf. country a hear their home without gees 110 Verdugo-Urquidez, U.S. suggest reasons” would ing, “contextual Ex- S.Ct. 108 L.Ed.2d of in functionally equivalent step the that full coer- posing foreign nationals landing re prior them and tercepting the United States’ criminal cive force of turning them their home countries many corresponding the laws without United States’ equally violate the would step, protections is a serious constitutional and un treaty under the thus obligations charged not for the but individuals statute. Notwith implementing der countries, host which have also for their inference, Supreme standing this jurisdiction own both their interests provision of that the relevant Court held who, their citizens in the freedom of Con inapplicable INA was because laws, no their have often committed under affirmatively extended its had not gress consequential crime. Such a serious States borders. beyond reach all, be must be if is to taken at step, Sale, expressly stated its the Court be taken by Congress, sug taken must not this court holding depend, did as left clearly; n.2, the decision is not the fact that Congress Op. at 1348 on gests, see deportation proceed intuit of statutes INA for courts to basis referred General, Attorney way. ings and referenced plausibly that can be read either Rather, Supreme prudential a domestic official. “context.” The concerns be- if hind against “[e]ven [the stated the canon extraterritoriality, in light return respecting refugees] subsequent were Court’s instruction, against expanding counsel strictly procedures, domestic not limited to Bowman rationale to non-citizens. Even presumption Congress Acts do nothing prevent were Congress from ordinarily not outside our borders acts criminalizing by foreign nationals interpretation ... support abroad, Bowman is about instructive within territo- applying only United States draw, which inferences are reasonable to at ry.” 509 S.Ct. at 2559. and it is reasonable to infer that put to should rest court’s con- Sale likely jurisdiction is more to assert over its against that the canon tention extraterrito- own citizens abroad than over na- riality by legislation touching is satisfied abroad, given jurisdictional tionals upon non-domestic concerns. And as dis- foreign policy implications step. such cussed, prudential favoring applica- factors The different nature of the offenses provisions tion of the canon to criminal issue analogy further undermines the INA if strong, are least Bowman. The rationale behind Bowman stronger, applying than those for it to civil crimes, was that some as defrauding such provisions. government, the United States because The court’s reliance on United States v. they directly harm gov the United States Bowman, 43 S.Ct. ernment in a logically depen manner “not (1922), theory L.Ed. 149 support locality,” dent their 260 U.S. at a statute’s non-domestic focus overcomes such are that it is obvious against extraterritoriality, presumption in declaring them to be crimes misplaced. Op. See at 1345^47. The prohibit intends everywhere. them Supreme Court Bowman dealt with the may While this true of class of crimes applicability to United such as against terrorism tar American States citizens offenses gets, see Yousef, United States v. 327 F.3d government, noting that the (2nd 56, Cir.2003), 86 or the murder of government right has a to itself defend abroad, agents see United against such crimes if “especially commit- Felix-Gutierrez, States 940 F.2d by citizens, officers, ted its or agents,” own (9th Cir.1991), 1204-05 & n. 8 the offenses Bowman, 43 260 at S.Ct. at charged against Garcia and his two code- whom the court ruled could be to held § fendants under 8 U.S.C. 1324 are to against govern- answer the “crime the different character. The harm that 1324 allegiance.” ment to which owe Id. at prevents the entry is unauthorized open 43 at 41. S.Ct. Bowman left aliens into the United which is whether, here, as such laws should be read quite “logically dependent on locality.” [its] extraterritorially as applying foreign na- Bowman, at at 41. S.Ct. express Congressional tionals without au- predicate Extraterritorial acts ‍​​‌‌​‌‌​‌‌‌​‌​‌‌‌‌​​​​‌​‌​​​​​​​​‌‌‌​‌‌‌‌‌‌​‌‌‌​‍occurring thorization, one of the codefendants in thousands of miles from the United States Bowman, national, a British be- charged such as those here harm the Unit the fore Court. Id. at only by ed States a far more attenuated 41. While this court off chain, writes this distinc- by that, causal making it more likely “irrelevant,” tion as Op. future, the dis- point at some in the unauthorized substantially tinction strength weakens may attempt illegal entry aliens into the of the inference that can be from drawn United States. the text reading and reasons for otherwise” cases like and Bowman Yousef

Felix-Gutierrez, test, compels see the conclu- departed Op. courts have against extraterrito- sion neither U.S.C. presumption from the (such 1324(a)(1)(A)® (a)(l)(A)(iv) a crime riality only because nor nor, extension, extraterritorially, the murder of United attack or does terrorist (a)(l)(A)(v). harm agent) would offense conspiracy States complet- if it was even government statute can be read reach While crime, the nature of abroad. Given ed predicate acts countries that must Congress inferred that the courts eventually entry could lead to un- protect the United States have intended aliens into the United documented harm irrespective from government equally plausiblе it from the text of the is the less imme- origin. The less direct and policies it that statute and the behind Con- from the United States the harm to diate gress had a less ambitious enforcement is, conduct the weaker extraterritorial latter possibility scheme mind. This is becomes, likely more inference history confirmed counter- Congress would consider is offense, illegal bringing outweigh interest vailing factors 1324(a)(1)(A)®, which was meant U.S.C. application. Congress persons no than to do more ensure legislative record more might adopt, on a unauthorized aliens to the transporting one now before complete than the not be from United States would absolved court, that extrater- conclusion the court’s liability by official’s refus- immigration of 8 ritorial U.S.C. arrival, al, enter. As upon let aliens United States bor- required safeguard offense, encouragement/inducement Op. at 1345. effectively. See ders more 1324(a)(l)(A)(iv), Congress has necessity approach calls But of such an extraterritoriality, silent as been hardly so policy for a conclusion statement absent clear it to the court can attribute obvious that limits, the any jurisdictional purpose be- solely of the of- basis against extraterritoriality hind canon here, as it can where fenses at issue reading the statute counsels immediate. extra- harm is direct and have such breadth. two conduct of Garcia his territorial over codefendants ended Guatemala A. 2,500 miles from the United States plain § 1324 contains no text of Mexico, miles from where over 100 it for- that the acts affirmative statement the migrants to travel. Under intended in they when ocсur are also forbidden bids circumstances, enough is not to war- there high or the seas. This other nations on “longstanding departure rant a from the although not meaningful, absence alone that statutes principle of American law” entirely presumption fatal. domestically contrary “unless a only apply extraterritoriality, strong, does not while Oil intent Arabian American appears.” a the force of clear statement quite have Co., at 111 S.Ct. at 499 U.S. rule; in consulted the Sale Supreme Court II. the history when legislative state- INA no clear at issue contained evi- requirement of “affirmative it apply to out- Congress’ ment of desire Court set forth dence” that Sale, Sale, the United States. See 113 S.Ct. at side 174-77, instruc- 2560. It is 113 S.Ct. at rather this court’s looser “contextual than tive, however, (a)(l)(A)(i) of pre context offenses (“bringing”), entry illegal (a)(l)(A)(ii) into venting drugs (“transporting] ... within the subject that similar United raises States”), (a)(l)(A)(iii) (“har- about policy questions the extent to which boring] or shielding] protection”) wishes to protect United States imply opposite, one generally cannot extending its preemptively borders laws in,” “bring[ ] ... “bring countries, into or other high seas Con States,” “transport ... within the United gress has criminalized extraterritorial acts States,” or “harbor” aliens without also the relevant the face of statute. See being in the United States oneself. The Act, Maritime Law Drug Enforcement only substantive possible offense it is (1980) (codified Pub.L. No. 96-350 to commit outside of the United States is app. §§ amended at 46 U.S.C. 1901-04 encouragement/inducement offense (2004)) (“Maritime Act”). Drug The Mari (a)(l)(A)(iv). Yet is equally possible it an Drug example time Act is of what commit thе same domestically, acts such as statute like looks when intends by advertising availability jobs apply it extraterritorially: it contains undocumented immigrants byor telephoni- express provision dictating it in “is cally inviting acquaintances foreign illegal- ... tended to reach acts committed out join ly the inducer the United States. jurisdiction side the territorial Unit While could have wanted States,” 1903(h); ed it provides for the both, (a)(l)(A)(iv) criminalize text jurisdictional limit that it does does not dictate such conclusion. foreign nationals vessels nations that do not consent to enforce To overcome difficulty, the court law, 1903(a); ment it pro an implicit finds command of extraterrito- jurisdiction vides and venue rules for de rial in the inchoate offense of fendants subsequently brought into the (a)(l)(A)(i) (“at- attempted bringing 1903(f). trial, By stand States”). tempt[ing] to bring to the United contrast, none contains of The court offers three reasons for this these elements. The court the Mari casts textual, reading, the first the second intra- aside, Drug time speculating Act that Con textual, the third in policy; rooted none is gress addressing a less “outward-look persuasive. argument, The textual ing” statute, statute than border control “attempts” reasons usually occur 1348-49, see Op. at but this distinction is abroad because completed become hardly persuasive. The “natural infer upon crimes entry aliens’ into ence,” Op. specifi of a statute cf. atOp. see ignores cally drug aimed at maritime interdiction the fact that attempts that fail at bor- that it presumably on the der or territorial waters have entered seas, high yet Congress thought still jurisdiction the territorial of the United necessary specify that the statute has without completing the substantive extraterritorial application. app. 49 U.S.C. intercepted crime. Aliens at the border 1903(h). not, in territorial many waters for Nor are the criminal in 8 offenses U.S.C. legal purposes, entered the United States. 1324(a)(l)(A)(i) (a)(l)(A)(iv) §§ of such explained in Sale: logical character as to cause a inference INA, now, they place take Under the both must abroad. The then and title of “bringing harboring in and those seeking “admission” and trying aliens,” certain well as the substantive to avoid already “exclusion” were and, (or they disembark, border), legal ar at entrants as territory its our within on though guably, intercepted high them as vessels the the law treated but the United to conspiracy had never entered seas in a connection all; they within United at were into the States. It is not States extends United territory not “within the but surprising provisions the forfeiture States States.” United to property would be limited otherwise jurisdiction. within United States Section 175, 113 at 2560. While at (b)(1) of, 1324(a)(1)(A)(i) not in favor against, counsels §in attempt provision the (a)(1)(A)(i). application of just it reading, the can open is to court’s (b)(1) consequence reading at- The of refer to instances where plausibly (a)(1)(A)® extraterritorially highlights aliens into the undocumented tempt bring the aliens dangers disregarding States fails because canon or in territo- intercepted at the extraterritoriality. are border Because this court’s (if surrep- attempt involves rial jurisdic waters with no reading leaves the statute entry by immi- entry), or refused limits, titious tional it would authorize the seizure (if involves оfficials gration foreign property and forfeiture of within or the record does entry). While fraudulent subject jurisdiction of coun other any statistics about not contain instance, as, tries —such for seizure a efforts, inter- control such border seas, foreign ship flying flag high would seem to border diction of a or even within the territorial waters fail that subse- many attempts place where To foreign country. say this creates (a)(l)(A)(i) the basis quently become nations,” “conflict with the laws of other plain text of prosecutions. Because Sale, 174, 113 S.Ct. at (a)(1)(A)® reading, it to either amenable international treaties to mention with of extraterri- “affirmative evidence” is not see, signatory, is a which the United States application. torial Sea, Law e.g., Convention second, argu- intra-textual The court’s (entered 29, 1958, 13 into April U.S.T. 2312 of extraterritorial ment finds command 1963), be an under Sept. force provisions forfeiture statement. 1324(b)(1), authorize sei- third, argument policy-based court’s being ... “any zure vessel used “the attacks of terrorist is that because a violation subsection commission of us that “bor- September 2001” remind (a).” The court rea- Op. at 1347-48. See impor- policies of crucial der-control are (b)(1) extraterritorially, applies sons that security national [] tance (a) well, must as for other- and therefore that enacted policy,” are not in harmo- two wise the subsections it must have intended But reason- ny. Op. See at 1347-48. extraterritorially protect order reach (b)(1) terms, circular; by plain ing is at 1345. Op. States’ borders. “being only to a vessel used applies course, could, adoрt the same of subsection of a violation commission criminal- and decide that policy conclusion words, (b)(1) (a)”; only applies in other (such acts predicate izing extraterritorial (a) does, if vice extraterritorially ver- as, case, covert travel in the instant (b)(1) Moreover, perfectly sensi- has sa. Guatemala) necessary component (a)(1)(A)® meaning if ter- ble important purpose But an border control. ritorially: seizure of vessels authorizes waters, presumption against extraterri- in behind vessels intercepted in territorial are be toriality is that such decisions detect il- immigration officials port where not Congress, safety reaching the courts. by made shore Guatemala. before the court contains noth- Only The record II after the Jose Alexander reached premise that ing support territorial passen- Guatemala did interviews with of the statute would be enforcement so gers reveal circumstances that led to the that could not inadequate charges criminal under it; example, intended for there is no evi- Moreover, the attempt court’s to read dence on which to evaluate the relative post-September-llth immigration policy effectiveness of different mechanisms of into aground 8 U.S.C. 1324 runs on the enforcement, immigration such as how legislative history provision heavily immigration rely authorities in- illegal bringing offense. That histo in foreign terdiction rather countries than ry Congress’ shows addition of the border, at the States or on interdic- attempt provision was nothing meant do high tion on the seas vis-a-vis territorial more than ensure thоse involved in waters; nor is there evidence on illegal transporting aliens to the United high interdiction on whether seas sub- not absolved criminal ject authority, to some other without the liability because an immigration official ul sanctions, is significantly threat of criminal timately entry denied the aliens into the than with less effective interdiction country. offense, “bringing” current The court’s threat. failure cite even one ly 1324(a)(1)(A)(i), codified at originated 1324(a)(l)(A)(i) case in which has been Act, §in 6 of 1891 Immigration Act of applied extraterritorially ap- undercuts its March ch. 26 Stat. 1084 parent control fear border will be (1891), which made it a misdemeanor to by failure to so. undermined do “bring into or land in the United States The unusual underlying circumstances otherwise, vessel or to bring [ ] aid into hardly suggest indictments issue ... any United States alien not lawful that extraterritorial enforcement of 1324 ly entitled enter.” provision, This 1891 plays integral role required because it completion of the of border control. Jose Alexander II fense, quite plainly did not extrater- intercepted was United States wa- ritorially. The attempt provision was in ters, or to such close waters or headed Act, serted Immigration the 1903 Act of them, but intercepted towards was rather 1012; March ch. Pub.L. No. 57- Guatemala, off the southern coast of over 162; 32 Stat. 1213. Report The House two thousand five hundred miles from the explains 1903 Act that Congress en route from Ecuador to amended the to: Nothing in the Guatemala. record sug- the word “attempt” substitute] for gests that the Coast Guard deems it neces- “aid,” courts having held that sary or useful patrol even waters so word “aid” involved the аctual landing of distant from United States shores to de- prohibited alien. Since such an tect smuggling. alien The United States rejected, alien is the provision must be spotted vessel that intercepted remain, amended or as it has been since Jose II Alexander was not a Coast Guard [,] ... decision letter. dead Navy destroyer, vessel but the U.S.S. H.R.Rep. (1902) Fife, that had Coast Law No. 57-982 at 4 (emphasis Guard Enforce- added). ment words, Detachment on In other board. The Coast was Guard’s involvement initially responding humani- court holding decisions tarian, purposes persons of providing brought food and who aliens not entitled to migrants water to the ensuring their enter the United States could not be held

1359 in expressed enacting § 6 intent the wording gress’ initial of liable under the entry by 1903 amendment. were denied aliens when those Id. There is noth- immigration officials. explained John of the 1903 substitution ing suggest to that Transp. Agency v. Clara son Santa for “aid” was intended “attempt” the term 616, 7, 1442, 480 629 n. 107 Cty., extraterri- expand bringing the offense to (1987), 7,n. 615 that 94 L.Ed.2d only to en- the amendment was torially; although Congressional “inaction” the ap- the criminal sure that judicial face of construction of a statute rejected,” an alien is ply when “such even “may always provide crystalline revela when, id., i.e., reaching the United upon tion,” that “should not obscure the fact entry. When the alien is denied probative varying it de may Immigration the and Congress enacted virtue the Ninth grees.” By Circuit’s Act Pub.L. Nationality ch. Ito has the geography, Yenkichi been law (1952), which con- 66 Stat. No. 82-414 every territory and having state contact immigration statutes existing solidated seventy the Pacific Ocean fоr over with bringing offense to relocated the Congress thought If had it neces years. Code, Congress de- the United offense sary attempted bringing the amendment, insert- the 1903 which scribed as make extraterritorially so it only intended provision, ed the intercept smugglers alien possible to existing law.” codify “primarily seas, would, high particularly it if it the H.R.Rep. at 14 No. 82-1365 fear, court’s have correct had shared this that removed one of two ed decision § 6 of the 1903 Act was recodi- When from statute’s neighboring oceans fied, changes, minor 8 of with that oth reach. While court observes Act, ch. Pub.L. No. Immigration circuits, in cases such as er Claramont 64-301; prohibit “any per- Stat. (5th Cir.1928) States, 26 F.2d 797 United owner, son, master, agent, including the curiam), upheld extraterrito (per consignee or vessel” encouragement/in rial in the landing] into or “bringing] offense, Op. at ducement see otherwise, or at- States, by [] vessel or offense, attempted unlike the inducement another, through or tempting], himself offense, nexus bears no obvious bringing or bring into land the United States” or maritime interdiction. high seas alien, nothing any undocumented indicates to decide Yenkichi Ito case expand the intended to bringing offense attempted whether scope original 1891 law the (a)(l)(A)(i) extraterritorially, under Further, when amendment. binding has interpretation been smug- an alien prosecuted for a large area very geographic over seas on the gler intercepted high long changed Con very time never bring theory attempted he had gress. States, the aliens into the United unlawful Circuit, Congress has not acted correct Ito v. Ninth in Yenkichi Ito, moreover, (9th Cir.1933), interprеtation Yenkichi F.2d held that by the Justice De- despite being informed extraterritorially not apply 8 did bound itself considered surprising- partment Not dismissed indictment. attempted bringing prosecute or not to tried to correct ly, Congress nowhere extraterritorially. When offense express disagreement with Yenkichi Re- Immigration decision, comported with Con- revised Ito Act form and Pub.L. penalties § Control No. civil in 7 of the Act that related 99-603, Depart- the Justice Stat. “engaged to those in business of trans- urged Congress ment to retain the encour- porting aliens within to or the United offense, agement/inducement which the operative only States” became upon a de- had Department “proven claimed be a termination that the defendant “ha[d] combatting smug- useful tool in alien [sic] brought or be brought port caused to ato gling” provision and “the ... that has of the any solicited,” alien so application.” extra-territorial See 7,§ although id. penalties the criminal H.R.Rep. 99-682, pt. at 112 No. § 7 under are the as same those for em- The thus Department put on ployers under similarly 5 and are silent Department notice that would not when liability triggered. Again, attempted prosecute bringing offense Act, the 1952 Immigration and Nationality outside of Despite States. which consolidated these offenses into (a)(1)(A)© amending to correct other court generic encouragemenVinducement offense here, decisions not at issue Congress took currently 1324(a)(l)(A)(iv), codified at (a)(l)(A)(i)’s respect no action with ex- provides no simplifica- indication application. Congress’ traterritorial si- tion and consolidation was intended to ef- lence on extraterritorial application of significant change fect a in their operation. § 1324(a)(1)(A)©, when confronted with Nothing about an encouragemenVin- both the Ito Yenkichi decision ducement awith territorial limi- Department’s representation, Justice acts, tation would be illogical. Most such is deafening. acknowledges, as the court see Op. are, admittedly, There fewer indications abroad, presumably occur but Congressional intent respect with against, of, that cuts favor extrater- encouragement/inducement offense in 8 application: ritorial likely there are few which, 1324(a)(1)(A)(iv), U.S.C. on its migrants who are not in- encouraged or face, is with or consistent without territo by party duced some third to make the rial limitation. The originated offense journey to the United States before Act, §§ 5-7 of Immigration the 1917 emigrate foreign country. Con- contemplated prohibited that some encour gress reasonably could have concluded agements printed, such as “advertisements persons by already inducements published, any foreign or distributed the United such employers country,” § would occur abroad. It is (as, promising jobs historically, was the unclear from face of the 1917 statute principal 1917), concern in or residents or the contemporaneous legislative history, urging family join friends and however, members to such whether here, pose them a greater acts threat than trigger liability also for encouragement eign in, foreign nationals national who never set foot or abroad, accompanied into, likely bеcause the former are any unlawful more aliens provide specific prohibitions destinations States. on “soli and credi- cit[ing] promises ble importation support or migration any concealment day upon §in arrival. “soliciting laborer” or at Or could have con- induce, cluded, assist, tempting encourage, Act, as it did in the Maritime Drug 1903(a), solicit to come app. jurisdiction- alien into by promise employment” foreign 6 al and policy weigh concerns imply Congress’ both concern activity criminalizing by foreign primarily employers. with domestic jurisdictions, nationals particu- here, Liang, 224 can consist ters. See United States v. F.3d the crime larly, as where (9th Cir.2000). likely exceedingly speech and is Likewise in of mere Claramont, common. F.2d relied on court, Op. see at the alien who was statutory text that The combination actually induced entered require extraterrito permits but does States, Emmanuel v. United States. See legislative his rial and silent application (5th Cir.1928); 24 F.2d 905 Smith Unit a court to tory enough is not of a basis for (5th Cir.1928). States, 24 ed F.2d 907 But apply encouragement/induce the decide to previously up no other circuit court has 1324(a)(1)(A)(iv) beyond ment offense the encourage held indictment under jurisdiction of the United the territorial charge, ment/inducement Courts “assume States. 1324(a)(1)(A)(iv), here, where, the in the legislates against backdrop pre place ducement takes abroad and the extraterritoriality.” alien sumption against Co., 499 at never reaches the Arabian American Oil U.S. United under As attempted bringing 111 S.Ct. at 1230. charge, Sale, in refusing 1324(a)(1)(A)®, where, here, to § Court instructed no as particulаr consider amendment ever pect reaches the Unit Nationality Immigration and Act sufficient point ed States. There are no cases on intent to extend the Congress’ evidence appeal regard from other circuit courts of extraterritorially, possibility law ing encouragement/inducement of such a Congress “might have intended” fense, point regarding and the case on affirma result “is not a substitute offense, attempted bringing Yenkichi extraterritoriality of intended tive evidence Ito, 73, rejects 64 F.2d the court’s inter require.” cases 509 at U.S. our pretation. Empagran, at also 2561. See S.Ct. The breadth that court reads into 8 — 2366; at-, Ara S.Ct. at § 1324 should not be understated. U.S.C. Co., bian American Oil particu- the conduct at issue While seas, nothing case the high lar occurred on statute, B. any from once untethered limit, it to maritime territorial confines By departing well-established Su Presumably, the guide interdiction. who against reading preme precedent Court into covertly helps migrants from Ecuador extraterritorially absent statutes (so eventually can Colombia evidence,” holding the court’s “affirmative States) guilty could be reach the United on 8 1324 stands alone. Other 1324(a)(1)(A)®; conspiracy to violate appeal upheld circuit convic courts of the Ecuadorian mother who convinces her encouragement tions for extraterritorial illegal voyage to the Unit- son make ultimately and inducement where the alien money that he can send back ed States so see United entered family (1st support living abroad could Nunez, 668 F.2d 12-13 States v. 1324(a)(l)(A)(iv). violating § Cir.1981) guilty of curiam); (per United States v. not, (9th pоint is not that could Castillo-Felix, 539 F.2d 12-13 Cir Williams, subject the limitations of the Fifth 1976); 464 F.2d United States v. Davis, Amendment, (2nd Cir.1972), see States v. and in dictum ob (9th Cir.1990), criminalize 905 F.2d application the extraterritorial served (or that the United States such conduct attempted bringing offense where statute wa- would care enforce the intercepted vessel is participants), sum, minor but rather that absent interpretation, court’s stopping point, a territorial the breadth of criminalizes irrespective location, acts the statute becomes staggering. jurisdiction, or nationality of the defen- prosecutorial confidence that court’s dis- dant, absent indication that Congress diplomatic cretion and skill will smooth gave such consideration, factors fails to difficulties, Op. over such see prudential heed the interests the canon not particularly reassuring or if relevant: safeguards. Both through the substantive the Supreme thought Executive crimes, offenses and inchoate expertise Branch were the solution to of 8 U.S.C. 1324 extraterritorially crimi- problems arising from the unintentional nalizes a wide range of conduct that abroad, of United States law legal in the occurs, countries which it there would little need for a canon including great deal of speech. travel and against extraterritoriality. holding court’s allows 8 U.S.C.

Indeed, jurisdictional the lack of limits Congress where was silent about extrater- in 8 U.S.C. 1324 should be a warning ritoriality, reach, paradoxically, much Congress did not contemplate extra jurisdiction further into the of other coun- application. noted, territorial As Con tries than closely analogous Maritime gress’ approach preempting the impor Act, Drug expressly illegal tation of drugs the Maritime proclaimed its intention to the stat- Act, (the Drug §§ app. 1901-04 ute abroad. It is unlikely that Congress law likely the U.S.S. enforcing Fife ever intended such a dichotomous out- when happened upon the defendants’ come, and “context” alone provide cannot vessel), Act, In that instructive. Con the requisite indication of Congressional gress expressly extended its reach to ves intent required by Court. seas, high sels on the but limited it to Because has not “clearly ex- subject jurisdiction vessels of the pressed” that the charged offenses vessels, stateless vessels of indictment under 8 U.S.C. 1324 are to nations, consenting and United citi apply extraterritorially, Arabian Ameri- zens and resident any aliens board ves Co., can Oil 111 S.Ct. at 1903(a); sel. Id. United States v. cf. government and ‍​​‌‌​‌‌​‌‌‌​‌​‌‌‌‌​​​​‌​‌​​​​​​​​‌‌‌​‌‌‌‌‌‌​‌‌‌​‍the fails to offer Gonzalez, (1st Cir.2002). 311 F.3d 440 evidence to overcome the presumption line, Congress thus drew a based on against extraterritoriality statutes, judgments foreign about relations and in government because the has waived law, ternational that it criminal waiver might claim it ize acts nationals the vessels statutory challenge, see concurring opinion of foreign nations without such nations’ Judge Randolph, the indictments should consent. precisely This is pre what the have been dismissed. Accordingly, I re- sumption against applica extraterritorial spectfully dissent. tion serves ensure: that Congress con sider lines, such factors and draw such the judiciary, lacking foreign policy

expertise, respect these considerations

erring against finding ap plication in unclear statutes. The Su

preme Court’s decision this Term in Em — pagran, -, U.S. at 124 S.Ct. at 2366, could not point. be clearer on this

Case Details

Case Name: United States v. Delgado-Garcia, Jose

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 23, 2004

Citation: 374 F.3d 1337

Docket Number: 03-3060, 03-3067, 03-3068

Court Abbreviation: D.C. Cir.