The Defendant, Mr. Gutierrez-Gonzalez, was convicted of reentry subsequent to deportation following an aggravated felony (second degree murder), in violation of 8 U.S.C. § 1326(a)(1) & (2) and 8 U.S.C. § 1326(b)(2). On appeal, Mr. Gutierrez-Gonzalez alleges that the district court erred in not considering his defense of entrapment by estoppel. We exercise jurisdiction pursuant to 28 U.S.C § 1291 and, for the reasons explained below, affirm Mr. Gutierrez-Gonzalez’s conviction.
I. BACKGROUND
A. Facts
Mr. Gutierrez-Gonzalez, a citizen of the Republic of Mexico, has twice been deported from the United States, most recently in September of 1994 after he was convicted of second degree murder. His native language is Spanish, and he has only a minimal understanding of English. He is married to Dalia Aida Delgado, a United States citizen, and prior to his deportation, Mr. Gutierrez-Gonzalez resided in New Mexico with his wife and two children, both of whom are United States citizens. After his most recent deportation, Mr. Gutierrez-Gonzalez resided in Ciudad Juarez, Mexico. Ms. Delgado and his twо children, however, continued to live in New Mexico and occasionally visited him in Ciu-dad Juarez.
At the time of his deportation, Mr. Gutierrez-Gonzalez received two forms that are relevant to this appeal. First, he was served with a deportation warrant from the INS “commanding” officers of the United States to take Mr. Gutierrez-Gonzalez into custody and deport him. See Rec. vol. I, doe 56, Exh. B. Attached to the warrant was a “Notice to Persons Under Deportation or Exclusion Proceedings in the El Paso District” (the “notice”). The notice, written in both English and Spanish, gives general information regarding legal assistance for deported aliens. The notice states: “If you desire legal assistance but are without funds, one of the following organizations may be able to assist you without charge or for a nominal fee.” The notice then lists the addresses and phone numbers of three private organizations in El Paso, Texas, and three private organizations located in the state of New Mexico that рrovide legal assistance. After listing these private organizations, the form provides the telephone number of the El Paso Bar Association and states: “The El Paso Bar Association maintains a lawyers referral service. If you can afford to hire a lawyer but have not contacted one, and you desire legal *1163 assistance, it is suggested that you contact this office.”
In addition to the warrant and notice, according to the government’s uncontested written proffer, Mr. Gutierrez-Gonzalez received and signed an Advisal of Penalty for Reеntry: INS Form 1-294.
See
Rec. vol. I, doc. 50, at 3. Deportation procedure requires that the alien be “served either personally or by certified mail with Form 1-294 informing him in his native tongue of the penalties which can be imposed should he return to this country after deportation without obtaining permission from the Attorney General.”
United States v. Wong Kim Bo,
Mr. Gutierrez-Gonzalez alleged the fol-iowing facts in a written proffer (with supporting affidavits) to support his defense of entrapment by estoppel. See Rec. vol. I, doc. 56 & 57. The government does not dispute the proffered facts; rather, the government argues that, even if Mr. Gutierrez-Gonzalez’s facts are true as alleged, they do not support the defense of entrapment by estoppel.
In May 1996, Ms. Delgado contactеd Diocesan Migrant and Refugee Services (“Diocesan Services”), one of the private agencies listed on the deportation notice received by Mr. Gutierrez-Gonzalez, to determine if Mr. Gonzalez could obtain permission to live in the United States again. Ms. Delgado spoke with Gloria Castro, an employee of Diocesan Services. Ms. Castro interviewed Ms. Delgado and asked her to have Mr. Gutierrez-Gonzalez come to her office the following week to comрlete the required paperwork for Mr. Gutierrez-Gonzalez to return to the United States. At the meeting (which took place in El Paso, with Mr. Gutierrez-Gonzalez apparently in the United States illegally), the circumstances of Mr. Gutierrez-Gonzalez’s deportation and his prior felony record were discussed. Ms. Castro consulted with another employee and informed Ms. Delgado and Mr. Gutierrez-Gonzalez that nothing could be done because of Mr. Gutierrez-Gonzalez’s prior felony conviction. However, Ms. Castro asked Ms. Delgado to leave her home and work telephone numbers in case any assistance could be provided in the future.
Several days later, Ms. Castro called Ms. Delgado and informed her that Mr. Gutierrez-Gonzalez could apply for and receive a work permit. Ms. Castro took the necessary forms to Ms. Delgado, which included an application for adjustment of status, an application for work authorization, and an “Affidavit of Support” for Ms. Delgado to complete. Ms. Castro informed Ms. Delgado that Mr. Gutierrez-Gonzalez needed to have a medical examination to receive the work permit.
On May 28, 1996, Mr. Gutierrez-Gonzalez (again in the United States illegally) received a physical examination and proceeded to Diocesan Services for another meeting with Ms. Castro. At the meeting, Ms. Castro completed Mr. Gutierrez-Gonzalez’s application for change of status. Though she was aware that Mr. Gutierrez-Gonzalez had been deported from the United States, Ms. Castro responded in the negative to a question that asked if the applicant had ever been deported. She did so at the direction of her supervisor, Ms. Maria de Carbon Guerrero, who told her to proceed with the application and argue the deportation issue at a later time. After completing the application, Ms. Castro signed the document as the person who completed the form. Mr. Gutierrez-Gonzalez also signed the form, certifying “under penalty of perjury ... that this application, and the evidence submitted with it, is all true and correct.”
On June 19, 1996, Mr. Gutierrez-Gonzalez (still in the United States illegally) took *1164 his application for adjustment of status to the INS office in El Paso, Texas, for processing. When submitting the application (which stated that he had not previously-been deported), he told the INS clerk, Patricia Arrambide, that he was in the United States illegally. Regardless, the INS clerk issued him a work authorization permit (Form I-688B). However, at that time, the clerk specifically informed Mr. Gutierrez-Gonzalez that the work permit was not an entry document. He responded that was not a problem because he did not plan to leave the United States. At the INS office, Mr. Gutierrez-Gonzalez was fingerprinted and an FBI records check was requested. In total, Mr. Gutierrez-Gonzalez paid $930.00 to the INS for the Form I-699B employment authorization permit.
On October 7, 1996, United States border patrol agents encountered Mr. Gutierrez-Gonzalez in the Dona Ana County Detеntion Center, where he was being held for failure to pay traffic fines. The agents ran a background check on Mr. Gutierrez-Gonzalez and found that he was in the country illegally. Mr. Gutierrez-Gonzalez was subsequently indicted, charged, and convicted of reentry subsequent to deportation following an aggravated felony.
B. Procedural History
At his arraignment on November 14, 1996, Mr. Gutierrez-Gonzalez pled not guilty and a jury trial was scheduled to begin March 10, 1997. On March 7, 1997, the government filed a “Motion in Limine” seeking to exclude all evidence of Mr. Gutierrez-Gonzalez’s contact with Diocesan Services and the INS regarding his acquisition of the I-688B work authorization permit. The trial court granted the motion and excluded the evidence. On March 10, 1997, the trial date was vacated by agreement of the parties. The parties thereafter agreed to a waiver of Mr. Gutierrez-Gonzalez’s right to a jury and agreed to submit testimony and evidence by written proffer. The district court, after considering the parties’ written proffers, entered its Memorandum Opinion and Order finding Mr. Gutierrez-Gonzalez guilty.
C. Standard of Review
Generally, a district court’s grant of a motion in limine is reviewed for abuse of discretion.
See Den Hartog v. Wasatch Academy,
II. DISCUSSION
The statute under which Mr. Gutierrez-Gonzalez was convicted states in relevant part:
[a]ny alien who—
*1165 (1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, dеportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chaptеr or any prior Act, shall be fined under Title 18, or imprisoned not more than 2 years, or both.
(b) Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection—
(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such Title, imprisoned not more than 20 years, or both....
8 U.S.C. § 1326 (emphasis added). The statute expressly excludes any specific intent regarding entry into the United States and makes it a crime for a deported alien to be found “at any time” in this country “unless” he has the “express” consent of the Attorney General. As we have previously held, “nothing more than a showing of general intent is required” and “the government need not show that defendant willfully and knowingly engaged in criminal behavior, but only that the defendant’s acts were willful and knowing — that the defendant willfully and knowingly reentered the United States and that he did so without the Attorney General’s permission.”
United States v. Miranda-Enriquez,
As Judge Posner has noted, Congress has been faced with the increasingly difficult task of stemming the flood of illegal immigration to this country.
See United States v. Anton,
It frequently happens that aliens of the criminal and other classes who are deported under the general immigration law reenter the country unlawfully. As a matter of fact, in some instances such aliens have been deported four or five times, only to return as soon as possible to the United States in an unlawful manner.
It is true ... that if criminal prosecution fails, the previously deported alien can be deported again; but having to deport the same illegal alien again and again is just the tedious cycle that Congress was trying in section 1326 to break_ The fact that possible deportation is not a sufficient deterrent to discourage those who seek to gain entry through other than regular channels is demonstrated by the frequency with which (the Department of Labor) is compelled to resort to deportation proceedings for the same alien on several succeeding occasions.
Id. at 1020 (quotations omitted) (further explaining how the legislative history of section 1326 reveals Congress’s intent to place the burden of a mistake as to legal status in the United States on the deported alien and quoting S.Rep.No.1456, 70th Cong., 2d Sess. 1 (1929)). In response to these problems and in the hope of deterring illegal reentry, Congress, in the plain language of the statute, has imposed a severe penalty if a previously deported felon is found “at any time” in the United States. Further, by excluding a specific intent requirement, Congress placed the burden of correctly obtaining permission from the Attorney General and reentering the United States legally on the alien.
Mr. Gutierrez-Gonzalez does not challenge the fact that the government proved every element of the crime required by the statute: that Mr. Gutierrez-Gonzalez was (1) knowingly in the United States, (2) without the permission of the Attorney *1166 General, (3) after prior deportation for an aggravated felony. Rather, Mr. Gutierrez^Gonzalez argues that the government should be estopped from prosecuting him because an “agent of the government” led Mr. Gutierrez-Gonzalez to believe that he was in the country legally. Mr. Gutierrez-Gonzalez contends that he reasonably believed he was in the United States legally as a result of his interaction with Diocesan Services and the issuing of a work permit by the INS. Based on this contention, Mr. Gutierrez-Gonzalez argues that the district court erred in denying his defense of entrapment by estoppel.
A. Entrapment by Estoppel ' '
In
United States v. Nichols,
The defense of entrapment by estoppel is implicated where an agent of the government affirmatively misleads a party as to the state of the law and that party proceeds to act on the misrepresentation so that criminal prosecution of the actor implicates due process concerns under the Fifth and Fourteenth amendments. There must be an “active misleading” by the government agent, arid actual reliance by the defendant. Further, the defendant’s reliance must be reasonable in light of the identity of the agent, the point of lаiv misrepresented, and the substance of the 'misrepresentation.
Nichols,
We have not specifically addressed the type of authority — actual, apparent, or otherwise — necessary for a government agent to estop the enforcement of federal criminal laws. However, wе have held that “[t]he courts invoke the doctrine of estop-pel against the government with great reluctance.”
United States v. Browning,
It is fundamental that the United States is not estopped by representations made by an agent without authority to bind the government in a transaction. Jackson v. United States,216 Ct.Cl. 25 ,573 F.2d 1189 (1978); Albrechtsen v. Andrus,570 F.2d 906 (10th Cir.), cert. denied,439 U.S. 818 ,99 S.Ct. 79 ,58 L.Ed.2d 109 (1978); Enfield v. Kleppe,566 F.2d 1139 (10th Cir.1977); Atlantic Richfield Co. v. Hickel,432 F.2d 587 , 591-592 (10th Cir.1970); Massaglia v. Commissioner of Internal Revenue,286 F.2d 258 , 262 (10th Cir.1961). It has been held that one who relies on a legal interpretation by a governmental official assumes the risk that it is in 'error. Airmotive Engineering Corp. v. United States,535 F.2d 8 , 11 n. 3,210 Ct.Cl. 7 (1976). It has also been held or said that “the government could scarcely function if it were bound by its employees’ unаuthorized representations.” Goldberg v. Weinberger,546 F.2d 477 , 480 (2nd Cir.1976), cert. denied,431 U.S. 937 ,97 S.Ct. 2648 ,53 L.Ed.2d 255 (1977).
Browning,
The Supreme Court first addressed the defense of entrapment by estoppel, though it has never used that terminology, in
Raley v. Ohio,
In
Cox v. Louisiana,
More recently, in
United States v. Pennsylvania Indus. Chem. Carp.,
Influenced by these cases, we hold that the defense of entrapment by estoppel requires that the “government agent” be a government official or agency responsible for interpreting, administering, or enforcing the law defining the offense. This view is consistent with the Supreme Court’s application of the defense discussed above, and is the view taken by the Model Penal Code and several other circuits.
See United States v. Spires,
One case,
United States v. Tallmadge,
B. Diocesan Services
In the present сase, the district court was correct to deny Mr. Gutierrez-Gonzalez the defense of entrapment by estoppel based on Diocesan Services’ alleged misrepresentations. Diocesan 'Services is not a government agency. Rather, it is a private entity 'that provides assistance to indigent aliens - who' have been deported. Even if the acts of this private company could somehow- be considered “state action” because it is listed on a form provided by thе government, Diocesan Services and its employees are not government officials charged with interpreting, administering, or enforcing the immigration laws of the United States. Thus, the district court properly denied Mr. Gutierrez-Gonzalez’s entrapment by estoppel defense based on Diocesan Services’ alleged misrepresentations.
Further, Mr. Gutierrez-Gonzalez’s alleged reliance on Diocesan Services is unreasonable “in light of ... the point of law misrepresented, and the substanсe of the misrepresentation.”
Nichols,
C. The INS Clerk
Finally, Mr. Gutierrez-Gonzalez argues that the INS “affirmatively misled him as to the state of the law” and that he “relied on that misrepresentation,” when the INS clerk issued him a temporary work permit. While it would seem that Mr, Gutierrez-Gonzalez should have immediately been taken into custody when he admitted to the INS clerk that he was “in the country illegally,” the INS’s failure to arrest Mr. Gutierrez-Gonzalez “on the spot” and the erroneous issuance of a work permit does not estop the federal government from later arresting and prosecuting Mr. Gutierrez-Gonzalez for illegally reentering the, country. Mr. Gutierrez-Gonzalez did not inform the INS clerk that he had previously been deported from the United States. Rather, Mr. Gutierrez-Gonzalez submitted a fraudulent application that affirmatively stated that he had never been deported. The INS clerk spe *1169 cifically informed Mr. Gutierrez-Gonzalez that the work permit “was not an entry document.” Under these facts, even if an INS clerk could be considered an “agent of the government” charged with interpreting, administering or enforcing immigration law and the actions in this case considered “active misleading” as to the state of the law, Mr. Gutierrez-Gonzalez’s alleged “belief” that he was in the United States legally was not reasonable.
III. CONCLUSION
The district court properly concluded that, as a matter of law, entrapment by estoppel is not a permissible defense in this case. Consequently, we AFFIRM Mr. Gutierrez-Gonzalez’s conviction for reentry subsequent to deportation following an aggravated felony.
Notes
. In many entrapment by estoppel cases, the district court’s conclusion that the defense is not аvailable will rest on findings of fact. Any findings of fact made by the district court would be reviewed under the deferential "clearly erroneous" standard as set forth in Fed.R.Civ.P. 52(a).
See United States v. Ortiz,