Immigration law - alien denied entry to another country and returned involuntarily to United States, not "found in" United States.

• Author: Thomas, Maurica D.
• Position: Case note

IMMIGRATION LAW--Alien Denied Entry to Another Country and Returned Involuntarily to United States, Not "Found In" United States--United States v Vasquez Macias, 740 F.3d 96 (2d Cir. 2014).

Under 8 U.S.C. [section] 1326(a), after an alien is deported from the United States, reentry by that alien into the United States without approval of the U.S. Attorney General is an offense. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) a point of contention with this statute is the meaning of being "found in" the United States, specifically when an alien leaves the United States, but does not gain legal entry into another country. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) in United States v. Vasquez Macias, (NOTEREF _Ref257636377 \h \* MERGEFORMAT) the Court of Appeals for the Second Circuit examined whether an alien who was previously deported from the United States was "found in" the United States after Canadian border officials detained him on the Canadian side of a bridge and transported him in handcuffs to U.S. Customs and Border Protection (CBP) officials. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) The Second Circuit held that Vasquez Macias (Vasquez) was not "found in" the United States, because he crossed the physical border into Canada and was returned to the United States under restraint by Canadian border officials. (NOTEREF _Ref257636377 \h \* MERGEFORMAT)

Vasquez, a citizen of Honduras, was deported from the United States in 2000 following a criminal conviction for selling drugs to undercover officers. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) After his deportation, he illegally reentered the United States and remained for a number of years. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) For unknown reasons, Vasquez decided to leave the United States by crossing the Rainbow Bridge from Niagara Falls, New York to Niagara Falls, Ontario on January 10, 2012. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) Officers of the Canada Border Services Agency (CBSA) observed Vasquez walking along the Canadian side of the bridge and took him to the CBSA office to conduct an inspection. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) At this time CBSA officers found that Vasquez had neither a passport nor a visa to gain entrance into Canada, nor a believable reason for traveling, and thus, they denied him entry. (NOTEREF _Ref257636377 \h \* MERGEFORMAT)

The CBSA gave Vasquez a document entitled "Allowed to Leave," which is given to individuals who are denied entry to Canada from the United

States. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) However, despite providing Vasquez with this document, which bestows a right to freely leave Canada's border, the CBSA placed Vasquez in handcuffs and transported him to the U.S. border, where they turned him over to CBP officials. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) a routine check of Vasquez's record revealed that he was deported from the United States in 2000 due to a felony drug conviction. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) Vasquez was charged with "being unlawfully found in the United States after deportation" in the U.S. District Court for the Western District of New York and on May 11, 2012 a jury convicted him under 8 U.S.C. [section][section] 1326(a) and 1326(b)(2) for being an illegal alien found in the United States. (NOTEREF _Ref257636377 \h \* MERGEFORMAT)

Vasquez moved for an acquittal of the verdict by challenging the terms "found in" contained in [section] 1326(a). (NOTEREF _Ref257636377 \h \*MERGEFORMAT) The U.S. District Court for the Western District of New York noted that Vasquez's request was untimely filed, and although the court stated it had the authority to allow Vasquez's request as timely, the court concluded that it would not reconsider his argument that he crossed into foreign territory and was therefore incapable of violating [section] 1326(a). (NOTEREF _Ref257636377 \h \* MERGEFORMAT) Finding that there was no reason to reconsider the case, the court denied Vasquez's request as untimely, while reiterating its stance that a previously-deported alien denied entry to another country has not legally left the United States, and can therefore be guilty of being "found in" the United States upon returning to the U.S. border. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) The Second Circuit reversed and remanded the case, ordering Vasquez's acquittal and holding that the lower court erred when ruling Vasquez was "found in" the United States because he was returned to the United States involuntarily. (NOTEREF _Ref257636377 \h \* MERGEFORMAT)

The ambiguous language of 8 U.S.C. [section] 1326(a) regarding the offense of being "found in" the United States first appeared in the Immigration and Nationality Act of 1952 (INA), also known as the McCarran-Walter Act. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) This act was an attempt to consolidate all of the previous immigration laws in existence at the time. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) since its enactment, the act has undergone many amendments and overhauls, most notably the Immigration and Nationality Services Act of 1965 (INSA) and the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA), which was approved in 1996. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) Despite subsequent amendments over the years, many parts of the original act are still in place today, and Act 276, "Reentry of Removed Alien," is cause for dispute among federal circuit courts. (NOTEREF _Ref257636377 \h \* MERGEFORMAT)

One element of the "found in" clause that the federal circuit courts agree on is the time at which the crime is completed. (NOTEREF _Ref257636377 \h\* MERGEFORMAT) An alien is found in the United States when federal authorities become aware of the alien's physical presence in the United States, have knowledge that the alien has previously been deported, and the alien is present in the country without authorization from the Attorney General. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) Therefore, being found in the United States is a continuous offense that is completed upon discovery by federal authorities, unlike the offenses of entering or attempting to enter, which occur at the specific date of the act. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) In the landmark case United States v. DiSantillo, the Third Circuit stated that because Congress added the phrase "found in," but did not remove "enters," the intent was for these two phrases to constitute two distinct violations. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) Aliens who are not caught entering the country cannot later face charges for entering or attempting to enter, so the addition of the phrase "is at any time found in" provides for prosecution in those circumstances where a previously deported alien has made a successful illegal entry. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) As such, in United States v. Canals-Jimenez, the Eleventh Circuit required surreptitious entry as a prerequisite to violation of the "found in" clause in [section] 1326(a). (NOTEREF _Ref257636377 \h \* MERGEFORMAT)

Recent cases have required a more detailed interpretation distinguishing surreptitious entry from entry through official means, building on the opinions in DiSantillo and Canals-Jimenez. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) This has also led to various interpretations of the doctrine of official restraint. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) Under this doctrine, a person cannot gain entry to the United States when traveling from a foreign country under official restraint. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) However, the Ninth Circuit has worked around this doctrine to gain convictions by holding that previously-deported aliens denied entry to another country have never legally departed the United States, regardless of physical presence on foreign soil. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) Applying this logic, the Ninth Circuit finds that if a previously deported alien has not gained a legal presence in another country, the official restraint doctrine does not apply because the alien is not entering the United States from a foreign country. (NOTEREF _Ref257636377 \h \* MERGEFORMAT) Contemporaneous Second Circuit opinions have mainly focused on the previously-deported alien's physical presence in the United States, leaving the...