IMMIGRATION LAW--Leap of Faith: How an Alien's Timely Reentry into the United States Thwarted His Prosecution.

Author:Passafaro, Thomas E.
Position:Case note
 
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IMMIGRATION LAW--Leap of Faith: How an Alien's Timely Reentry into the United States Thwarted His Prosecution--United States v. Argueta-Rosales, 819 F.3d 1149 (9th Cir. 2016).

Pursuant to the Reentry of Removed Aliens statute (codified at 8 U.S.C. [section] 1326), an alien, who was forcibly removed from the United States, is required to satisfy specific statutory standards in order to legally reenter the United States. (1) In measuring whether an alien has entered the United States for purposes of violating [section] 1326, they must possess the requisite intent; meaning they entered the country without consent and to be "free from official restraint." (2) In United States v. Argueta-Rosales, (3) the Ninth Circuit Court of Appeals considered whether Omar Argueta-Rosales entered the United States "free from official restraint." (4) The Ninth Circuit ultimately vacated and remanded the matter due the government's failure to prove, beyond a reasonable doubt, that Argueta-Rosales' intent was to enter the United States "free from restraint" and that the lower court's decision was predicated on an erroneous legal standard. (5) Omar Argueta-Rosales was born in Mexico and he, along with his mother, migrated to Los Angeles, California. (6) In 2006, when Argueta-Rosales was sixteen, an immigration judge ordered Argueta-Rosales to be removed from the United States and brought back to Mexico. (7) In 2010, Argueta-Rosales was apprehended for unlawfully trying to enter the United States and upon the conclusion of trial, in 2011, he was placed on probation. (8) When Argueta-Rosales was sent back to Mexico, he started abusing methamphetamines. (9)

On November 29, 2013 Argueta-Rosales again attempted to cross over into the United States illegally at the San Ysidro port of entry in California. (10) The border agent, Agent Jeffrey Schwinn, instructed Argueta-Rosales to head back to Mexico. (11) After disregarding Agent Schwinn's request, Argueta-Rosales was placed under arrest. (12) Argueta-Rosales was apprehended and subsequently interviewed in his cell, and towards the end of the interview, Argueta-Rosales became delusional. (13) He started describing people who he believed to be alongside him in his jail cell, who he believed were out to kill him. (14)

In February of 2014, Argueta-Rosales was formally charged "with attempting to reenter the United States" illegally, which was in violation of the Reentry of Removed Aliens statute. (15) Argueta-Rosales, being a previously removed alien, did not receive consent to reenter the United States from the Attorney General or prove her consent was not required; therefore, he failed to satisfy the statute's requirements for proper reentry. (16)

Defense counsel argued that Argueta-Rosales, under a drug-induced delusion, did not intend to enter "free from official restraint," but that his sole intention was to be protected by United States law enforcement. (17) The Southern District Court of California rejected defense counsel's argument because regardless of his delusion, "(1) [Argueta-Rosales] knew he was crossing into the United States and (2) knew he did not have permission to do so." (18) In 2015, Argueta-Rosales filed an appeal in the Ninth Circuit Court of Appeals, who vacated and remanded the district court's decision and held that despite his delusions, Argueta-Rosales did not enter the country and possess the intent to be "free from official restraint" but instead to be placed into protective custody. (19)

Under immigration law, immigrants who entered the country illegally were sympathetically safeguarded from prosecution under U.S. law. (20) Prior to 2010, the Reentry of Removed Aliens statute was rarely prosecuted as a criminal offense, however, it is now among one of the most prevalent criminal charges brought by federal prosecutors. (21) Federal prosecutors seldom use criminal charges under the circumstances with the goal being to "[reserve] the criminal law to punish the 'worst of the worst' ... those that 'citizens of any community would want off the streets.'" (22) This ideological shift was set into motion by the United States Attorney's Office for the Southern District of California in an attempt to deter these criminal offenders from reentering the United States. (23) An alien can be removed for a plethora of different reasons, but in 2016, ninety-two percent of all interior removals were previously convicted of a crime. (24)

In order to be prosecuted under the Reentry of Removed Aliens statute, an alien must: (1) be previously removed from the United States; and (2) have the sole intent to enter the country to be "free from official restraint." (25) Upon the statute's enactment, an important case in employing this concept was United States v. Pacheco-Medina, (26) accentuating the basis for determining whether or not an alien possessed the intent to be "free from official restraint." (27) In Pacheco-Medina, the defendant, who was previously deported, was captured by border agents after being spotted on a surveillance camera. (28) Pacheco-Medina illustrates the potential scenarios for an alien to be enter the United States "free from official restraint" under the Reentry of removed aliens statute, such as an alien purposefully exercising their free will or physical agility to evade border inspection. (29) The determinative test exemplified by the Pacheco-Medina Court is the alien's desire to freely amalgamate with the general population of the United States. (30)

If the alien does not have the intent to enter the United States solely to be "free from official restraint," they are not considered to have entered the United States for purposes of [section] 1326. (31) Although an alien may have entered the United States in the literal sense, for statutory purposes, entry is not accomplished until they are "free from official restraint." (32) The case of United States v. Parga-Rosas, (33) demonstrates the legal fiction of entry under the statute and how if the alien does not have that requisite intent, he is precluded from prosecution under the Reentry of Removed Aliens statute. (34) In Parga-Rosas, the defendant, previously deported, was apprehended at a complex in California and claimed that his reentry was not voluntary. (35) The Court held that "an alien's mere physical presence on United States soil [...] is insufficient to convict him of being found in the United States in violation of [section] 1326" and that the government must prove that at the time of apprehension, the alien entered for the sole purpose of being "free from official restraint." (36)

In United States v. Argueta-Rosales, (37) the Ninth Circuit Court of Appeals considered if the previously deported defendant, Omar Argueta-Rosales, had the sole intent to enter the United States "free from official restraint" thus, violating the Reentry of Removed Aliens statute. (38) The Ninth Circuit Court of Appeals proclaimed that a violation of the Reentry of Removed Aliens statute is a specific intent crime that requires the defendant solely enter the United States to be "free from official restraint." (39) If the defendant does not have the requisite intent to enter "free from official restraint," he is deemed to have never entered the United States for purposes of the Reentry of removed aliens statute. (40) The Court emphasized that whenever there is a contradictory evidence relating the defendant's intent, the government has the burden of proving beyond a reasonable doubt that the defendant did possess such unlawful intent. (41)

Moreover, the Court proclaimed, while he was physically present in the United States, Argueta did not solely enter the San Ysidro port of entry in California solely to be "free from official restraint." (42) The Court examined Arugeta's drug-induced state, coupled with his lackluster attempt to avoid border patrol, in evaluating his intent. (43) Consequently, Argueta-Rosales did not possess the statute's obligatory intent because he entered the United States only to be imprisoned, which was wholly motivated by the fear for his own well-being. (44) The dissent in Argueta-Rosales rebutted the majority's lenient application of the specific intent requirement, finding that aliens can now act as if they wanted to enter the United States "free from official restraint" and if apprehended, can declare they wanted to go to jail and be protected from prosecution under the Reentry of Removed Aliens statute. (45)

The Ninth Circuit Court of Appeals incorrectly vacated and remanded the district court's decision in finding that Argueta-Rosales did not enter the United States with the intent to be "free from official restraint" and thus, could not be prosecuted under the Reentry of Removed Aliens statute. (46) By vacating and remanding this decision, the court preserved the idea of a violation of the Reentry of Removed Aliens statute being a specific intent crime, but more importantly broadened the concept of what it means to be "free from official restraint" to an immeasurable position. (47) Furthermore, the Court improperly applied precedent within the circuit by permitting the official restraint doctrine to all government officials, creating an ambiguity in the law relating to illegal reentry. (48)

Unlike the district court, the Ninth Circuit Court correctly applied a specific intent standard, as required by statute, however, incorrectly determined Argueta-Rosales did not possess the statute's requisite intent. (49) In their analysis of the statute, the Court properly determined that, amongst an alien's intentions, he must enter the United States "free from official restraint," but failed to weigh what previous cases within the Ninth Circuit applied under similar circumstances. (50) The legislative intent behind the statute's enactment was to preclude and deter previously deported aliens, such as Argueta-Rosales, from recurrently entering the United States illegally and the Court...

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