United States v. Vasquez Macias
2014 WL 114272, 740 F.3d 96, 2014 U.S. App. LEXIS 736 (2014)
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Rule of Law:
An alien previously deported is not "found in" the United States in violation of 8 U.S.C. § 1326 if, after physically departing the U.S., they are involuntarily returned by foreign officials and are under official restraint at the moment of discovery by U.S. authorities.
Facts:
- Walter Yovany Vasquez Macias, a Honduran citizen, was deported from the United States in 2000 following a felony drug conviction.
- In approximately 2001, Vasquez illegally reentered the United States and lived there for about ten years.
- Deciding to leave the U.S., Vasquez traveled to Niagara Falls, New York.
- Vasquez walked across the Rainbow Bridge from the U.S. into Canada.
- Canadian Border Services Agency (CBSA) officers encountered Vasquez on the Canadian side of the bridge.
- Finding that Vasquez lacked a passport or visa, CBSA officers refused his entry into Canada.
- CBSA agents then placed Vasquez in handcuffs and forcibly escorted him back across the bridge to U.S. Customs and Border Protection (CBP) officials.
Procedural Posture:
- Walter Yovany Vasquez Macias was indicted in a U.S. District Court for being 'voluntarily present and found in the United States' after a prior deportation, in violation of 8 U.S.C. § 1326.
- Following a trial, a jury found Vasquez guilty.
- Vasquez filed a post-trial motion for a judgment of acquittal, which the district court denied.
- Vasquez, as the appellant, appealed his conviction to the U.S. Court of Appeals for the Second Circuit, with the United States as the appellee.
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Issue:
Does an alien who has physically departed the United States and is then forcibly returned in custody by officials of another country satisfy the 'found in' element of 8 U.S.C. § 1326 when discovered by U.S. authorities upon their involuntary return?
Opinions:
Majority - Wesley, J.
No. An alien cannot be convicted for being 'found in' the United States when their presence at the time of discovery is the result of being forcibly and involuntarily returned by foreign officials after having physically departed the country. The court rejected the government's theory of 'continuous presence,' which posits that an alien who is not legally admitted to another country never technically leaves the U.S. Once Vasquez physically crossed the border, he was no longer 'in' the United States. When U.S. officials 'found' him, he was under official restraint and his presence was involuntary, analogous to an alien stopped at a port of entry who has not yet legally 'entered.' To convict him for being found in the U.S. as a result of his attempt to leave would create a perverse disincentive for other unlawfully present aliens to depart.
Concurring - Raggi, J.
No. The conviction must be reversed because the government failed to prove the required mens rea, or criminal intent, for a 'found in' violation. The statute requires proof of a general intent to be in the United States, meaning the alien's presence must be voluntary. While this can be satisfied if an alien's presence is the result of a prior voluntary return, Vasquez's physical departure for Canada broke the continuum of his earlier unlawful presence. Because he was forcibly returned in handcuffs, his presence in the U.S. at the moment he was 'found' was not voluntary, and it did not derive from his most recent voluntary act, which was to leave.
Analysis:
This decision creates a circuit split with the Ninth Circuit, which had previously endorsed a 'continuous presence' legal fiction to convict aliens in similar circumstances. By rejecting this fiction, the Second Circuit emphasizes that physical location and voluntariness are critical elements of the 'found in' offense under 8 U.S.C. § 1326. The ruling provides a defense for previously deported aliens who attempt to leave the U.S. but are immediately rejected and returned by a neighboring country, ensuring they are not criminally punished for an involuntary presence that results directly from their attempt to self-deport.
