Lead Opinion
Judge RAGGI concurs in a separate opinion.
Walter Yovany Vasquez Macias (“Vasquez”) is a citizen of Honduras with a checkered immigration history in the United States. He was detained in California in 1990, left voluntarily, illegally reentered the country, and then sold drugs to at least two undercover officers in the late 1990s (leading to one criminal conviction and deportation in 2000). Vasquez again returned to the United States without authorization in approximately 2001;
For reasons not known to us, Vasquez decided to abandon the antique market and leave the United States. With a
CBSA agents handed Vasquez over to U.S. Customs and Border Protection (“CBP”) officials, who conducted an immigration investigation and records check. The CBP records check revealed that Vasquez was a Honduran citizen who had been asked to leave in 1990 and been deported in 2000 for his felony drug conviction. Vasquez was indicted for being “voluntarily present and found in the United States.”
Discussion
The parties agree as to the facts of the case and as to most of the applicable law, but leave it to this Court to determine the meaning of “found in” and whether Vasquez was continuously “in the United States” within the meaning of 8 U.S.C. § 1326.
I
The Government proposed that the term “found in[ ] the United States” is synonymous with “present in the United States.” We have previously rejected this interpretation. “The offense of being ‘found in’ the United States ... depends not only on the conduct of the alien but also on acts and knowledge of the federal authorities.” United States v. RiveraVentura,
II
The parties also disagree as to when Vasquez was “found in” the United States. The Government contends that, notwithstanding his physical presence north of the Canada / U.S. border, Vasquez never left the United States.
Prior to this “discovery,” Vasquez physically crossed the border from the United States into Canada; at that point, he had neither a legal nor a physical presence in the United States. If found at this point, Vasquez was not “in[ ] the United States” pursuant to the requirements of 8 U.S.C. § 1326. Nevertheless, under similar circumstances the Ninth Circuit has twice held that the aliens were “found in” the United States pursuant to a theory that employed a legal fiction of their continuous presence in the United States after having crossed into Canadian territory. See United States v. Gonzalez-Diaz,
First, the Ninth Circuit noted that Am-briz “was never legally in Canada, and thus, ... was not entering the United States from a foreign country.”
Aliens attempting to enter the United States, stopped in analogous circumstances, are not legally in the United States. See, e.g., United States v. Angeles-Mascote,
Indeed, the Supreme Court has recognized that a person, denied entry into the United States, might also not be present in any other country. See, e.g., Shaughnessy v. United States ex rel. Mezei,
The possibility that Vasquez was outside the United States once he exited our borders finds mixed support in his treatment by customs officials at the border. A U.S. CBP official testified that Vasquez was treated, at least in some respects, as though he had never left the United States, but a CBSA agent testified that Vasquez made it far enough that he could not have turned around and returned to the U.S. side of the Rainbow Bridge. Vasquez was transported, in custody, under a status known as “immigration examination.” On his return, United States officials did not permit Vasquez to leave; they took his fingerprints and ran them through national databases, questioned him in secondary inspection, forced him to fill out customs paperwork, and ultimately arrested him.
Insofar as Vasquez’s treatment mirrored U.S. CBP’s customary treatment of immigrants seeking to enter through ports of entry, this would be insufficient to support Vasquez’s conviction for entering the United States, based on the doctrine of “official restraint.” See, e.g., United States v. Zavala-Mendez,
The criminal liability of previously-deported, undocumented aliens who are denied admission into Canada is a new ques
Ill
The Ninth Circuit also justified its Am-briz-Ambriz decision because it believed that the “found in” prong was the only way that Ambriz could be prosecuted.
The law does not bend to meet the facts of each case. Although Vasquez undeniably broke the laws of the United States at some point after his 2000 deportation, he is not guilty of the crime of which he was convicted. We are not too troubled by this seeming oddity. Even though we reverse his criminal conviction, Vasquez will (again) be subject to deportation.
Two primary but immaterial differences separate Vasquez from cases like Angeles-Mascóte. First, unlike Angeles-Mascóte, Vasquez was entering the United States after having been denied entry into another country, rather than after having been legally present in another country. Because nothing in 8 U.S.C. § 1326 requires entry into the United States following legal presence in another country, this distinction should not matter. Cf. Obscene Magazines,
Vasquez and Angeles-Mascóte were both not “in the United States” when they were found; like Angeles-Mascóte, Vasquez is therefore entitled to judgment as a matter of law. It was plain error for Vasquez to be convicted of being “found in” the United States, and allowing his conviction to stand would constitute manifest injustice.
Conclusion
Although he had indisputably been present in the United States illegally for nearly a decade, Vasquez was not “found” while he was in this country. When he was found — admittedly not long after his departure from the United States — Vasquez had neither a physical nor a legal presence in this country. When he had been “found” and was “in[ ] the United States,” Vasquez had been returned involuntarily with neither a desire to enter, nor a will to be present in, the United States. As a result, Vasquez was not “found in[] the United States” within the meaning of 8 U.S.C. § 1326.
For the foregoing reasons, the judgment of conviction entered in the district court is REVERSED and the case is REMANDED with instructions to enter a judgment of acquittal.
Notes
. Although his 2001 unlawful reentry may have constituted a separate violation of 8 U.S.C. § 1326, it is not at issue in this case (and the statute of limitations on such a violation would already have expired).
. This language from his indictment does not precisely mirror the statutory requirements of 8 U.S.C. § 1326; however, we presume that he was convicted of the crime alleged in the indictment, and the Government does not allege otherwise. If it did, then we would be forced to determine whether his conviction constituted a prejudicial variance from the terms of his indictment.
. This section indicates, in relevant part, that: [A]ny alien who ... has been ... deported, or removed ... and thereafter ... enters, attempts to enter, or is at any time found in, the United States, unless ... the Attorney General has expressly consented to such alien’s reapplying for admission; or ... such alien ... establishes] that he was not required to obtain such advance consent ... shall be fined under Title 18, or imprisoned not more than 2 years, or both.
8 U.S.C. § 1326(a). Vasquez does not contend that he had the authority to enter or that his reentry did not require advance authorization.
. Of course, this would mean that Vasquez was "found” by Canadian border officials in the United States. That seems a bit curious, but neither party has advanced the argument that being "found” by agents of a foreign government is not sufficient to trigger liability under the statute, and we therefore assume for the purposes of this case that the CBSA agents were capable of “finding” Vasquez.
. Ambriz and Gonzalez-Diaz, • appellants in the Ninth Circuit cases, also returned to the United States after seeking admission to Canada. By seeking refugee status, Gonzalez-Diaz actually secured an overnight stay 55 miles into Canada before being returned to the United States in custody. Gonzalez-Diaz,
. Two recent examples of a similar phenomenon include suspected traitor Edward Snow-den, who had his passport rescinded as he fled the United States for Russia and was stranded in the "transit zone" of Sheremetye-vo International Airport, "which is technically considered outside Russian territory," Lukas I. Alpert, Four Days In, Fugitive’s Airport Stay Falls Short of Many Terminal Cases, Wall. St. L, June 27, 2013, at A6; and Mehran Karimi Nasseri, who inspired the Steven Spielberg movie The Terminal. See Ethan Gilsdorf, Behind ‘The Terminal,’ A True Story, Christian Sci. Monitor, June 21, 2004, at 11.
. The Ninth Circuit has held that "the official restraint doctrine 'pertains to an individual entering the United States from a foreign country, and thus is inapplicable’ ” in cases like this one. Gonzalez-Diaz,
. At least one other circuit has held (albeit in an unpublished opinion) that U.S. citizens’ reentry into the United States after a failed attempt to take an excursion into Canada constituted a separate entry into the United States. United States v. Snyder, No. 01-2382,
. Criminal law scholars remember that in Larsonneur, a French woman lawfully in the United Kingdom was instructed to leave the country by March 22, 1933; she dutifully traveled to the Irish Free State (then a distinct entity). 24 Cr.App. R. at 76. Not only did the Irish Free State deny her admission, but "the defendant was forcibly brought back to the United Kingdom by police and then convicted of being in the U.K. illegally.” Ian P. Farrell and Justin F. Marceu, Taking Vol-untariness Seriously, 54 B.C. L. Rev. 1545, 1589 (2013).
.While a skeptical observer might ask what good deporting Vasquez will do, as he has returned without authorization at least once already, we note that in this case Vasquez's genuine attempt to leave might hint at his disinclination to return.
. In Angeles-Mascóte, the indictment charged that Angeles-Mascóte "knowingly[] and unlawfully entered and was found in the United States.”
. We note that Vasquez physically left the United States and was returned in handcuffs without manifesting a desire to stay — yet the Government charged him for his "voluntary” presence. If we felt it necessary to reach the specific mens rea requirement of 8 U.S.C. § 1326(a), we would likely agree with Judge Raggi's well-reasoned concurrence.
Concurrence Opinion
concurring in the judgment:
The court today reverses defendant Vasquez’s conviction for being “found in” the United States after deportation without the permission of the Attorney General in
There is no need for me to repeat facts detailed by the majority. I note simply that Vasquez submits that, as a matter of law, he cannot stand convicted of having been “found in” the United States after a prior deportation because (1) United States authorities only found him in this country when he was involuntarily returned — in handcuffs — by Canadian officials who had just denied him legal entry into their country, and (2) to the extent he had voluntarily returned to the United States after deportation some years before crossing into Canada, he was never found in this country by United States officials during that time.
Neither at trial nor on appeal has the government disputed that a defendant’s presence in the United States must be voluntary to support a § 1326 conviction. Indeed, the indictment so charges, and the jury was so instructed in this case. Rather, the government maintains that Vasquez’s presence in the United States cannot be divorced into two parts, one before his unsuccessful entry into Canada, when he was voluntarily in this country but not yet “found” by United States officials, and the other after Canadian authorities returned him to this country in restraints, at which time he was “found” here by federal authorities. The government submits that defendant’s § 1326 crime is properly viewed as continuing, so that his voluntary presence here before he left for Canada, and the government finding him here after his attempt to enter Canada, together satisfy the mens rea and actus reus elements of the crime of conviction.' The district court’s charge supported this theory of culpability, instructing the jury that “a person who is denied entry to a foreign country and is returned to the United States side of the port of entry did not leave the United States even if that person was physically on foreign territory before being brought back into the United States.” A-322.
In explaining why I cannot agree, I briefly consider the two elements of a § 1326 crime. As to the actus reus element of being “found in” this country after deportation, our precedent instructs that the crime is not complete until the government becomes aware of defendant’s illegal presence in this country. See United States v. Williams,
The government, however, maintains that Vasquez was not here attempting to enter the United States from a foreign country because Canada had, in fact, denied him entry. It argues that, despite his actual physical departure from United States soil and brief physical presence in Canada, Vasquez should be treated as never having left the United States.
Insofar as this argument distinguishes physical from legal presence in a foreign country, suggesting' that the latter is necessary to preclude a defendant who has departed the United States from being “found in” this country upon even involuntary return, I am not convinced. Vasquez may not have been legally present in Canada when he physically crossed into that country, but neither was he ever legally present in the United States before crossing into Canada. The government’s real argument seems to be that where, as here, a defendant surreptitiously enters this country illegally, he somehow remains in this country — even if no longer here physically — until he enters another country lawfully, or at least until he does so free from official restraint. I disagree.
The official restraint doctrine places a limit on our government in proving a § 1326 crime.
This concern is only aggravated when one considers the crime’s mens rea element. As already noted, the government does not dispute that § 1326 requires proof of mens rea. But as we consider precisely what intent is required to support a “found in” conviction — a matter not previously addressed by this court — we confront the challenge of a silent statutory text. See United States v. Champegnie,
Certainly, that is the conclusion this court has reached in considering the statute’s “enter” and “attempt to enter” prohibitions. While we have declined to construe these prohibitions to require proof of a defendant’s specific intent to disobey the law, see United States v. Newton,
There is no reason to construe § 1326’s “found in” prohibition not to require similar proof of mens rea. Even though being
Voluntary presence at the time officials find a deported alien in this country does not require the government to prove how the defendant entered the United States. See Sand at Instr. 33A-36, cmt. at 62-63 & n. 7 (citing cases). At the same time, courts have held that § 1326 does not require proof of voluntary presence at the precise moment a defendant is found in the United States. In United States v. Salazar-Robles,
In this respect, being “found in” the United States may be considered a continuing offense that begins with the alien’s voluntary return to this country after deportation and is completed when federal authorities discover his presence. See United States v. Hernandez-Noriega,
That is not this case. There is no question that Canadian authorities returned Vasquez to this country in handcuffs, and that he remained so until he was surrendered to the U.S. authorities. Cf. United States v. Quintana-Torres,
In Ambriz-Ambriz, the Ninth Circuit candidly acknowledged that its decision was animated by a concern that if the defendant in that case could not be prosecuted for being “found in” the United States on his return from Canada, he would escape prosecution altogether.
Because Ambriz presumably did not have any intent to enter the United States, as he never legally left the country ..., it is doubtful that Ambriz could be successfully prosecuted ... for “entering” or “attempting to enter” the United States. Thus, if the court were to adopt Ambriz’s argument that he cannot be prosecuted for being “found in” the United States, this could lead to the untenable result that the government could not prosecute Ambriz under any of the provisions of [§ 1326].
The government would have us solve this mens rea problem by adopting the legal fiction that a person who is no longer physically in this country, in fact, remains here so as to commit a continuing crime in violation of § 1326. I decline to do so. To be sure, in protecting its borders, a country may well make decisions about who has or has not lawfully entered its territory in ways that do not comport with actual physical presence. But such matters are best left to the legislature, particularly when they implicate criminal culpability, where a court’s task is not to fill gaps in the law but to ensure its provision of adequate notice of the conduct proscribed. See generally Arriaga v. Mukasey,
In sum, while reversal is an unsatisfactory outcome in this case for a defendant who lived unlawfully in this country for approximately a decade, I join my colleagues in the majority in concluding that Vasquez’s conviction for being “found in” the United States unlawfully cannot stand because
(1)the crime has an implicit mens rea element requiring proof of voluntary presence in the United States as well as an explicit actus reus element of being found in the United States;
(2) that requisite mens rea can be established either by proof of (a) lack of official restraint at the time defendant is found in the United States, or (b) evidence of defendant’s voluntary presence in the country at or after his most recent return to the United States, and
(3) as a matter of law, the mens rea element was not proved in this case because
(a) Vasquez was under official restraint when he returned to the United States from Canada,
(b) no record evidence was adduced indicating that, upon being denied entry into Canada, Vasquez’s intent was to return to the United States, and
(c) Vasquez’s voluntary return to the United States after deportation almost a decade before he was found in this country could not supply the requisite mens rea because he had physically departed this country and was returned only in restraint.
. The official restraint doctrine has been held irrelevant to other criminal immigration laws. See United States v. Munoz,
. "Free from official restraint” has been defined to mean "free from observation or surveillance by government officials for any period of time after one enters the United States until the time one is apprehended or placed in custody.” Sand at Instr. 33A-36. See Correa v. Thornburgh,
. Insofar as the mens rea requirement of voluntariness suggests the availability of a duress defense to a § 1326 charge, the burden would be on the defendant “to establish all elements of the defense, including the fact that the defendant surrendered to authorities at the first safe opportunity to do so.” Sand at Instr. 33A-36, cmt. at 64. See United States v. Charleus,
. Indeed, neither Ambriz-Ambriz, nor the same court’s decision in United States v. Gonzalez-Diaz,