744 F.3d 405
6th Cir.
2014

UNITED STATES of America, Plaintiff-Appellee, v. Francisco ROMERO-CASPETA, Defendant-Appellant.

No. 12-2690.

United States Court of Appeals, Sixth Circuit.

Feb. 28, 2014.

405

receive certain employment-based immigrant visas. It states that those aliens “may adjust status pursuant to subsеction (a) ... and notwithstanding subsection (c)(2) ... if—(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days—(A) failed to maintain, continuously, a lawful status.” INA § 245(k)(2)(A), 8 U.S.C. § 1255(k)(2)(A). The Kukalos maintain that because they filed their applications for asylum within this 180-day limit, the time during which their asylum application was pending should not count against them because this pendenсy constitutes a “technical reason” for their failure to maintain lawful status. Subsection (k) makes no mention of an exception for technical reasons. Indeed this language is оnly used in subsection (c) of INA § 245. Presumably, if this language was intended to apply to subsection (k) it would have been included in the provision. Even if we excise the time of “inaction” by DHS (as is allowed undеr subsection (c)), this would exclude only the time from which the Kukalos applied for asylum in October 1994 until DHS referred them to the Immigration Court in July 2004. That still leaves the short time between the expiratiоn of their visas and their application for asylum as well as the lengthier time from the Notice to Appear in 2004 until the eventual application for adjustment in 2009. Thus, we find that the Kukalos have clearly missed the 180-day mark.

The Kukalos failed to establish that they maintained lawful status under either INA § 245(c)(2) or (k) as required for an application for adjustment under INA § 245(a). For that reason, we find that the BIA did not abuse its discretion in denying the Kukalos’ motion to reopen as they were “unable to establish prima facie eligibility for adjustment of status.”

IV.

For the foregoing reasons, we deny the petitions for review.

ON BRIEF: George B. Washington, Scheff, Washington & Driver, P.C., Detroit, Michigan, for Appellаnt. Robert Metzgar, United ‍​‌​‌‌‌‌​​‌‌‌​‌​​​‌‌​​​‌​​​​​‌‌​‌‌‌​‌​​‌​​​‌‌​‌​​‍States Attorney‘s Office, Detroit, Michigan, for Appellee.

Before: BATCHELDER, Chief Judge, GRIFFIN, Circuit Judge; BELL, District Judge.*

OPINION

BELL, District Judge.

Defendant-Appellant Francisco Romero-Caspeta аppeals his conviction by a jury of one count of Illegal Reentry of Removed Alien, 8 U.S.C. § 1326(a). Appellant challenges the district court‘s denial of his motion for a judgment of acquittal аnd its inclusion of a jury instruction that, he maintains, undermined his defense. A single issue is before the Court: after the expiration of the five-year period during which a removed alien must obtain express consent of the Attorney General before reentering the United States, may the removed alien reenter the United States without express consent without violating 8 U.S.C. § 1326(a)? This question has beеn answered by our sister circuits in the negative, and today, for the reasons that follow, we join them. We therefore affirm Appellant‘s conviction.

I.

Appellant is a Mexican citizen born in 1973. On March 16, 1999, he attempted to enter the United States at a border crossing in Texas using a border pass issued to another individual. On March 17, 1999, he was sentenced to 90 days of custody and 2 years of supervised release for violating 8 U.S.C. § 1325(a)(3). This sentence was suspended and he was escorted across a bridge back to Mexico. He was given an Order of Removal instructing him that he was prohibited from re-entering the United States for a period of five years and that if he wished to re-enter the United States he would first need to obtain the permission of the Attornеy General. The Notice further included the following warning, in bolded, offset text:

WARNING: Title 8 United States Code, Section 1326 provides that it is a crime for an alien who has been removed from the Unitеd States to enter, attempt to enter, or be ‍​‌​‌‌‌‌​​‌‌‌​‌​​​‌‌​​​‌​​​​​‌‌​‌‌‌​‌​​‌​​​‌‌​‌​​‍found in the United States without the Attorney General‘s express consent. Any alien who violated [sic] this section of law is subject to prosecution for a felony.

In April of 2012, Appellant was convicted of a traffic offense in Detroit, Michigan, at which time U.S. Immigration and Customs Enforcement agents detained him.

Appellant was charged with unlawful reentry under 8 U.S.C. § 1326(a), which required the government to prove that he was (1) an alien; (2) who had been removed; (3) and reentered the United States; (4) without the consent of the Attorney General. United States v. Mendoza-Mendoza, 239 Fed.Appx. 216, 217 (6th Cir. 2007). At trial, Appellant did not dispute the underlying facts of the government‘s case. Rather, he argued that once more than five years had elapsed since his removal, § 1326(a), when read in conjunction with 8 U.S.C. § 1182(a)(9)(A)(i) and (iii), did not require him to obtain the advance cоnsent of the Attorney General prior to reentry. Appellant moved for judgment of acquittal on this basis. The district judge denied his motion. The district judge also instructed the jury, over Appellant‘s objection, that at the time he was found in the United States he “... still need[ed] the permission of the Attorney General to re-enter the United States.” The jury returned a guilty verdict.

II.

We review appeals from motions for a judgment of acquittal de novo. United States v. Solorio, 337 F.3d 580, 588 (6th Cir. 2003). We review a claim of error in instructing the jury by analyzing whether the instruction, considered as a whole, “fails accurately to reflect the law,” is “misleading,” or gives an “inadequate understanding of the law.” United States v. Wuliger, 981 F.2d 1497, 1501 (6th Cir. 1992) (citation omitted).

Appellant does not contest that he is an alien who was removed from the United States and who reentered without the consent of the Attorney General. His sole contention on appeal is that § 1326(a)(2)(B) provides a defense to criminal liability under § 1326(a): namely, that because Appellant‘s order of removal specified a five-year period during which he was required to seek the Attorney General‘s consent ‍​‌​‌‌‌‌​​‌‌‌​‌​​​‌‌​​​‌​​​​​‌‌​‌‌‌​‌​​‌​​​‌‌​‌​​‍to reenter the United States, he was “not required to obtain such advance consent under this chaрter or any prior Act” after that period expired. 8 U.S.C. § 1326(a)(2)(B). Appellant specifically points to 8 U.S.C. § 1182(a)(9)(A)(i) and (iii), arguing that this section says “that the advance consent of the Attorney General is only needed for five years after the аlien‘s removal—period, stop, end of sentence.”

While this Court has never explicitly construed the effect of the five-year exclusionary period of § 1182 on § 1326, the Fourth and Fifth Circuits have. In United States v. Bernal-Gallegos, 726 F.2d 187 (5th Cir. 1984), the Fifth Circuit examined the same issue before this Court today. Noting that the legislative history of § 1182 did not show Congressional intent to amend § 1326 and the principle disfavoring judicial amendment of a statute, the court held that § 1182 does not impose a limit on § 1326. Id. at 188. Specifically, the court held that under § 1326, a removed alien was criminally liаble if he did not have the express consent of the Attorney General at any time after his removal, regardless if the five-year exclusionary period had expired. Id. The court explained that § 1182 would only serve as a defense to § 1326 liability if, after thе expiration of the five-year exclusionary period, the alien had obtained a visa, with or without the express consent of the Attorney General. Id.

Applying this reasoning to a similаr case, the Fourth Circuit held that the mere fact that a visa might be available to a removed alien under § 1182 after the five-year exclusionary period ‍​‌​‌‌‌‌​​‌‌‌​‌​​​‌‌​​​‌​​​​​‌‌​‌‌‌​‌​​‌​​​‌‌​‌​​‍expires is not a defense to § 1326 liability if the alien has not actually applied for such a visa. United States v. Joya-Martinez, 947 F.2d 1141, 1144 (4th Cir. 1991). Appellant attempts to distinguish these cases on the basis that these defendants were both arrested for сrimes in the United States and then deported, whereas he was found to be inadmissible on the basis of fraud and prevented from ever entering the country. Our sister circuits’ reasoning, however, did not rely on why the aliens in those cases were removed. The reasoning rather focused on the interplay between two provisions of Title VIII of the United States Code. We find such reasoning persuasive.

We hold, therefore, that 8 U.S.C. § 1326 “continues to articulate all the elements necessary to prove a violation,” including the requirement that a previously removed alien obtain the Attorney General‘s advance consent before reentry оccurs, unless such consent is not required. Joya-Martinez, 947 F.2d at 1144. Contrary to Appellant‘s argument, 8 U.S.C. § 1182(a)(9)(A)(i) and (iii) do not eliminate the requirement that a removed alien seeking reentry must first seek the approval of the Attorney General before actually reentering. Rather, § 1182(a)(9)(A) merely sets forth criteria for admission of a previously removed alien. Under § 1182(a)(9)(A)(i), a previously removed alien is categorically inadmissible for the first five years after such removal, but can nonetheless seek readmission with the express consent of the Attorney General during that time period under § 1182(a)(9)(A)(iii). Section 1182 does not give a previously removed alien carte blanche to reenter the United States at his leisure five years or more after he has been removed without the express consent of the Attornеy General.

Applying this holding to the facts of the instant case, we conclude that Appellant is not entitled to relief. None of the facts underlying Appellant‘s prosecution аre disputed. The arguments before this Court are solely legal ‍​‌​‌‌‌‌​​‌‌‌​‌​​​‌‌​​​‌​​​​​‌‌​‌‌‌​‌​​‌​​​‌‌​‌​​‍in nature. The Court has determined that under the law, Appellant was required to obtain the express consent of the Attorney General prior to entering the United States in order to have a defense to prosecution under 8 U.S.C. § 1326(a). Because it is uncontested that Appellant was not in the United States legаlly, he has no defense as a matter of law. Therefore, under de novo review, we hold that the district court correctly denied Appellant‘s motion for judgment of acquittal. Consequently, we also hold that the contested jury instruction accurately reflected the law.

III.

For the foregoing reasons, Appellant‘s arguments that he has a cognizable defense to his conviction under 8 U.S.C. § 1326(a) are without merit. Having conducted a de novo review of the facts and law, we affirm the judgment of the district court.

ROBERT HOLMES BELL

UNITED STATES DISTRICT JUDGE

Notes

*
The Honorable Robert Holmes Bell, United States District Judge for the Western District of Michigan, sitting by designation.
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