UNITED STATES of America, Plaintiff-Appellee, v. Jose Guadalupe ZAVALA-MENDEZ, Defendant-Appellant.
No. 03-30321.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 7, 2004. Filed June 15, 2005.
409 F.3d 1116
It makes no sense to establish an administrative process for handling the huge volume of immigration cases, but then, after a person has conceded that he is an alien and lost on the merits in the immigration court, permit him to start all over again by saying “I am not an alien, but a citizen,” in the court of appeals. Allowing a person to try out an asylum claim by asserting that he is not a citizen, and then try to avoid an adverse asylum determination by asserting that he is a citizen, invites abuses that the overburdened system of adjudicating immigration cases cannot bear.
Kevin F. McCoy, Assistant Federal Defender, Anchorage, AK, for the appellant.
Jo Ann Farrington, Assistant U.S. Attorney, Anchorage, AK, for the appellee.
Before: HALL, KLEINFELD, and WARDLAW, Circuit Judges.
KLEINFELD, Circuit Judge:
This is a “found in” case where the previously deported alien presented himself at a border station.
Zavala-Mendez was a passenger in a car that crossed into Alaska on the Alaska Highway from the Yukon Territory on a January night. He had no right to enter the United States, because he had been deported and the Attorney General had not given him permission to reenter.1 At the border station Zavala-Mendez lied and said he had a green card. But he gave his true name, and it came up on the border station computer showing that he had been deported. He was therefore detained and driven to Anchorage, 430 miles away, where his fingerprints could be scanned and compared to the fingerprints in his alien file. The prints matched.
Zavala-Mendez was convicted of being “found in” the United States after having previously been deported.2 He was not indicted for attempting to enter the United States.3 His only defense is legal, that he could not be “found in” the United States when all he did after crossing the border was to go straight to the border station and present himself for entry.
Like all American border stations, the Alaskan facility is inside the United States, so by the time Zavala-Mendez got there, he was already across the survey line that delineates one country from the other. It was dark, and traffic is light on the Alaska Highway in January. There are no lights along the road except at the border, so the immigration inspectors can see the headlights of cars approaching from miles away, and drivers and passengers can likewise see the border from miles away. Zavala-Mendez‘s car was the first vehicle at the border in four or five hours.
The American border station facility is up a hill, a quarter or half mile from the actual border, because permafrost prevented building the facility closer to the border. The actual border is at the start of the hill. It takes well under a minute to drive at the speed limit from the treaty line between Canada and the United States—marked by a concrete obelisk—to the American border facility where federal personnel are sheltered from the extreme cold. A car is out of sight at the base of the hill—where the surveyed border and obelisk are—for perhaps a half second as it approaches the station, though, of course, the light from the headlights would remain visible in the dark.
A driver can tell when he crosses the border because at the surveyed border there are American and Canadian flags that are lit up all night, a “Welcome To Alaska” sign, and a tourist pullout next to the survey obelisk. The trees are also clear cut, like a power line cut, along the border. Thus, any driver or passenger paying attention would know that he was already across the border when he got to the border station.
The district court denied Zavala-Mendez‘s motion for a judgment of acquittal,4 he was convicted at jury trial, and he appeals. He raises a question as to jury instructions, but we do not reach it because we conclude that he was entitled to have his motion granted.
Analysis
We review a district court‘s denial of a Rule 29 motion for a judgment of acquittal de novo.5 The question we must ask is whether the evidence is sufficient. Under Jackson v. Virginia,6 the evidence is sufficient when, viewing the evidence in the light most favorable to the government, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”7
Federal law makes it a crime for “any alien who—(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States.”8 We emphasize the “found in” phrase because that is the only branch of the statute used in the indictment. Zavala-Mendez was not charged with attempting to enter, so we need not decide whether he could be convicted of that.
There are two relevant lines of authority regarding the “found in” branch of the statute. One involves people who fly to the United States from some other country, get out of the airplane at the airport, and proceed directly to the customs inspection counter where they present themselves. Though our circuit has not spoken to cases such as this, two of our sister circuits have.9 Our sister circuits agree that in such a case, even if the person is a previously-deported alien without permission to reenter, he cannot be convicted of being “found in” the United States (as opposed to attempting to enter).
Of course, in these airport cases, the alien is “in” the United States in a physical sense as soon as the plane crosses into American air space, often hundreds of miles before it reaches the airport where it lands (say, a London to Chicago flight). The alien is also “in” the United States when he walks on American soil during the often lengthy stretch, through corridors and around corners, from the ramp out of the plane to the customs counter. He is often out of sight because the corridors
The Eleventh Circuit in United States v. Canals-Jimenez emphasizes the word “found” for why a “found in” conviction cannot be sustained in this circumstance. “Found” implies that someone else found the alien in the sense of discovering him, and that is not so where he voluntarily presents himself:
The phrase “found in” is synonymous with “discovered in.” Any party who voluntarily approaches an INS station cannot be said to have been found or discovered in the United States. Any alien who seeks admission through a recognized immigration port of entry might be guilty of entering or attempting to enter the United States, but not of being found in the United States. Congress added the phrase “found in” to alleviate the problem of prosecuting aliens who enter in some illegal manner.10
The Fifth Circuit goes the same way in United States v. Angeles-Mascote. The Fifth Circuit quotes the same paragraph we do from Canals-Jimenez, and agrees that a person is not “found” when he presents himself. In addition, the Fifth Circuit takes account of the well established proposition that a person is not “in” the United States until he is not only physically present on our side of the border, but also enjoys “freedom from official restraint.”11
Our own circuit has not published any opinions on similar airport “found in” cases. We have published numerous opinions, however, about previously deported aliens who sneak back across the border.12 In those cases, where the aliens are caught right at the fence, under the full gaze of human eyes and electronic surveillance, we hold that they are not “in” the United States enough to be “found in.”13 If they get out of sight for some substantial period, they are “in.”14 We have drawn fine distinctions between being momentarily out of sight and being out of sight for a while.15
Much of the argument in this case focused on whether the moment of time when the slope of the hill blocked the car from the view of the inspectors at the border station was long enough to make this case like an alien who, although out of sight, walked up a box canyon from the border to the waiting arms of the border patrol,16 or short enough to make it like the alien who was out of sight for only a moment.17 We conclude that that “surveillance” line of authority is not the appropriate one. Those cases all deal with aliens
This case is not analogous to those cases where the alien sneaked in, avoiding the border station, because Zavala-Mendez proceeded on the designated course from the border directly to the border station.19 Aliens who proceed directly as instructed by signs or otherwise to the customs facility—be it through an airport corridor, a government designated highway, or some other designated legitimate path—are not sneaking into the United States. Instead they are presenting themselves to American officials in the manner designated by the United States government. An alien who crosses the border on a government designated path on a highway should be treated like the airport aliens, not the fence-jumping aliens. Like the defendants in the airport entry cases, Zavala-Mendez must be deemed not to be “found in,” because he proceeded directly to the border authorities in the designated manner.
Lying about his green card might have exposed Zavala-Mendez to an “attempting to enter” conviction, but he was not charged with that. He was charged with, and convicted of, being “found in” the United States. To avoid a “found in” conviction, he does not need the fine distinctions our cases have developed in the fence jumping cases.20 It does not matter that the sight line to his car was blocked for perhaps a half second, and it does not
An alien who crosses the border at a designated location and proceeds directly in the manner designated by the government to the border station where he then presents himself to the authorities has not been “found in” the United States for the purposes of
REVERSED.
HALL, Circuit Judge, dissenting.
By implicitly incorporating an intent element into what is essentially a strict liability crime, the majority‘s decision threatens to undermine a well-established line of Ninth Circuit cases holding that an alien enters the United States for the purposes of a “found in” conviction once he sets foot on U.S. soil, unless he has been under constant surveillance from the moment he crosses the border. Since Zavala-Mendez remained “free[ ] to go at large and mix with the population,” United States v. Hernandez-Herrera, 273 F.3d 1213, 1219 (9th Cir.2001) (citation omitted), for a discernible, albeit circumscribed period of time, I would affirm the district court‘s denial of Zavala-Mendez‘s Rule 29 motion for acquittal. I respectfully dissent.
* * * * * *
Section 1326 sets forth three separate offenses a deported alien may commit en route to the United States. A previously deported alien violates § 1326 if he “enters, attempts to enter, or is at any time found in, the United States.”
However, we have also developed a legal fiction, termed the “official restraint doctrine,” which excepts from prosecution individuals who are technically present on United States soil, but nonetheless “lack the freedom to go at large and mix with the population.” Hernandez-Herrera, 273 F.3d at 1219 (citation omitted); Parga-Rosas, 238 F.3d at 1213; United States v. Gonzalez-Torres, 309 F.3d 594, 599 (9th Cir.2002). The fiction originated in a century-old case in which Chinese immigrants were tailed by officials from Canada into the United States, and thereupon seized for violation of a statute prohibiting them from being “found unlawfully” in the United States. See Ex parte Chow Chok, 161 F. 627, 628-29 (N.D.N.Y.1908), aff‘d 163 F. 1021 (2d Cir.1908). The official restraint doctrine thus provides that “mere physical presence on United States soil ... is insufficient to convict [an alien] of being found in the United States in violation of
The majority‘s conclusion derives primarily from two decisions of sister circuits, United States v. Canals-Jimenez, 943 F.2d 1284 (11th Cir.1991), and United States v. Angeles-Mascote, 206 F.3d 529 (5th Cir. 2000). In each case, a defendant deboarded an international flight at a United States airport. Both defendants voluntarily proceeded to an immigration officer and attempted to gain entry to the United States, whereupon they were apprehended and ultimately convicted for being “found in” the United States. Canals-Jimenez, 943 F.2d at 1285-86; Angeles-Mascote, 206 F.3d at 530. The Eleventh Circuit held that the “found in” language of § 1326 was inapplicable. Canals-Jimenez, 943 F.2d at 1288. “Section 1326 applies only to situations in which an alien is discovered in the United States after entering the country surreptitiously by bypassing recognized immigration ports of entry....” Id. See also Angeles-Mascote, 206 F.3d at 531 (“Any party who voluntarily approaches an INS station cannot be said to have been found or discovered in the United States.“). However, this language in Canals-Jimenez was later determined to be mere dicta. See United States v. Gay, 7 F.3d 200, 202 (11th Cir.1993) (“[T]he Canals court was merely using a surreptitious entry as the most obvious example of an illegal entry which would not be detected by immigration officials, and after which an alien who had illegally entered might be ‘found in’ the United States.... Thus, we conclude that the reference in Canals to surreptitious entry is mere dicta and is not controlling.“).
Even assuming that the Fifth Circuit‘s pronouncement in Angeles-Mascote does not suffer from the same questions regarding its continuing vitality as does the Eleventh Circuit‘s decision in Canals-Jimenez, its analysis is implicitly undermined by our caselaw. Like our sister circuits, we have “construe[d] [official] restraint broadly.” Ruiz-Lopez, 234 F.3d at 448. We have not, however, dispensed with the concept of “restraint” altogether. Instead, we have adhered closely to the stated requirement that, in order to constitute official restraint, an alien must be subjected to constant surveillance. See United States v. Ramos-Godinez, 273 F.3d 820, 824-25 (9th Cir.2001) (“[W]hen the defendant has managed to evade detection, even for a brief period, we have held that the defendant had ‘entered’ the United States.“). Thus, in Hernandez-Herrera, a defendant-alien was deemed to have been free from official restraint although he was being persistently tracked into an area of dense brush from which there was no hope of escape. 273 F.3d at 1216. We held that Hernandez had not been “continuously surveilled” because “he was no longer visible” to the government official “once he entered the thick brush.” Id. at 1219. Likewise, Zavala was not visible to the Alcan agents as he drove the quarter-mile from the physical border to the Inspection Station. During that time, even if there had been “no hope of escape” from the densely forested area encompassing the
Nor does the relatively short distance between the U.S.-Canadian border and the Alcan Port of Entry, and correspondingly short duration required to traverse it, militate in favor of the majority‘s conclusion. In Hernandez-Herrera, there was no suggestion that the defendant was able to elude capture while in the thick brush for any significant period of time. Id. at 1216. Similarly, in United States v. Castellanos-Garcia, 270 F.3d 773 (9th Cir.2001), we determined that an alien had not been under constant surveillance because he introduced no evidence which suggested that “he was under constant observation by governmental authorities from the moment he set foot in this country until the moment of his arrest.” Id. at 775. Instead, Castellanos had been discovered serendipitously by an immigration officer, without the aid of any sensor or other detection device, approximately 100 yards from the U.S.-Mexico border. Id. at 774-75. We held that, in light of the dearth of evidence to suggest that Castellanos had been identified at the precise moment he crossed the border, the “free floating speculation that he might have been’ observed the whole time” was insufficient to undercut the government‘s position. Id. at 776.2 As such, Castellanos was “free to migrate into the general population for some time, and was not under constant observation during that period.” Id. at 775.
In Ramos-Godinez, we were confronted with a defendant who was observed crossing the border, but temporarily evaded surveillance when he crossed a 360-foot wide concrete canal which was obscured from the border patrol agent‘s field of vision, and when he entered an abandoned lot. 273 F.3d at 824. “[A]lthough law enforcement was in serious pursuit of Ramos-Godinez and his companions, he was not under ‘constant observation by governmental authorities....’ ” Id. at 824-25 (quoting Castellanos-Garcia, 270 F.3d at 775). During those brief periods of detachment, “Ramos-Godinez was exercising his free will.” Id. at 825. The facts elicited by Zavala present no more of a case than did those in Castellanos-Garcia and Ramos-Godinez. Zavala entered the United States unbeknownst to the Alcan agents, and remained undetected for approximately one-quarter of a mile into U.S. territory.
The fact that he proceeded directly to the inspection station did not render him officially restrained.
The situations in which we have found constant surveillance which may be construed as official restraint do not aid Zavala. In Pacheco-Medina, the defendant and two others were detected by a surveillance camera as they attempted to scale the fence guarding the U.S.-Mexico border. Pacheco‘s two associates were apprehended immediately upon reaching the ground, while Pacheco was chased from the moment he landed. Pacheco left the agent‘s sight for only a “split second as he
Zavala entered the United States unnoticed by the officials at Alcan. Testimony at trial indicated, in fact, that the physical border was completely shielded from the view of the Alcan Port of Entry. From the time that Zavala crossed the border into the United States until the moment he was first observed by the Alcan agents, Zavala was free “to go at large and mix with the population.” Hernandez-Herrera, 273 F.3d at 1219. That he drove directly to the inspection station and presented himself for review may have been relevant to his state of mind in a prosecution for attempted illegal entry; it is utterly irrelevant to the question of whether he had “entered” the United States for the purposes of being “found in” the country illegally. Since he was not under constant surveillance from the moment he entered the U.S. until the moment of his arrest, viewing the evidence in the light most favorable to the government, a rational trier of fact could easily conclude that Zavala was not under the “official restraint” of governmental authorities. I would, therefore, affirm the district court‘s denial of Zavala‘s Rule 29 motion for acquittal.