Circuit Reverses Alien’s Section 1326(a) Conviction: Defendant Was Not “Found In” the United States

The defendant, a citizen of Honduras, was convicted after a jury trial of being “found in the United States” illegally after he was deported from the United States, in violation of 8 U.S.C.§ 1326(a). The Circuit reversed the conviction, holding that the defendant was not in the United States when he was “found,” and that, when he was later discovered in the United States, he was not here voluntarily. Accordingly, the Court held, the conviction “was plainly erroneous and it would constitute manifest injustice to allow it to stand.”

The facts were undisputed. Vasquez Macias (“Vasquez”), an alien, was deported from the United States in 2000, following his conviction for a drug crime. He returned to the United States in 2001 and lived here illegally for about a decade. He then went to Canada by walking across the Rainbow Bridge. Canadian officials refused him entry, forcibly returned him in handcuffs to the United States, and handed him over to United States officials, who kept him in custody. He was then indicted and convicted for being “found in the United States” illegally. 

The Circuit held, in this published decision, that the conviction could not stand. The majority opinion (written by Judge Wesley) concluded that, though Vasquez had been present in the United States illegally for nearly a decade, he was charged only with the crime of “being found” here. But the government did not prove that crime: when Vasquez was “found,” he was in Canada, not the United States. At that point, he did not have a physical or legal presence in this country. Though he was then brought back to the United States and arrested, he had been returned to this country involuntarily, with neither a desire to enter, nor a will to be present. Under these circumstances, he was not “found in[] the United States,” as required to support his conviction under 8 U.S.C.§ 1326.

Judge Raggi concurred in a separate opinion. She agreed that the defendant’s conviction had to be reversed, but reached that conclusion on somewhat different grounds. Judge Raggi construed Section 1326 to require proof of a defendant’s general intent to be in the United States. In the case of a defendant charged with “being found” in the United States illegally, that means proof either that (1) the defendant was voluntarily in the United States when authorities found him physically present in this country, or (2) his presence in the United States at the time he was so found was a result of his last voluntarily return to the United States. Since neither circumstance pertained in Vasquez’s case, his conviction had to be reversed.