4.08.1326 Re-entry and Attempted Re-entry After Deportation, 8 U.S.C. § 1326 See Statute

[Defendant] is charged with [re-entering; attempting to re-enter] the United States after being deported. It is unlawful to engage in such conduct. For you to find [defendant] guilty of this offense, you must be convinced that the government has proven each of the following things beyond a reasonable doubt:

First, that [defendant] was an alien at the time of the alleged offense;

Second, that [defendant] had previously been deported;

Third, that [defendant] [re-entered; was found in; attempted to re-enter] the United States; and

Fourth, that [defendant] had not received the express consent of the Attorney General of the United States to apply for re-admission to the United States since the time of [his/her] previous arrest and deportation.

An “alien” is someone who is neither a citizen nor a national of the United States. A national is someone who is a citizen of the United States or someone who, although not a citizen, owes permanent allegiance to the United States.

“Re-enter” means to be physically present in the United States and free from official restraint.

Comment(s)

(1) The First Circuit recently stated that the second element of the offense includes proving that the defendant had previously been arrested in addition to deported. United States v. Cabral, 252 F.3d 520, 522 (1st Cir. 2001). That seems incorrect: a 1996 amendment eliminated the statute’s reference to arrest.

(2) Specific intent to reenter the United States is not an element of the completed reentry offense. United States v. Soto, 106 F.3d 1040, 1041 (1st Cir. 1997). Although the First Circuit initially seemed skeptical that specific intent is an element of the attempted reentry offense, see Cabral, 252 F.3d at 523-24, it has recently explicitly stated that attempt “is a specific intent crime in the sense that an ‘attempt to enter’ requires a subjective intent on the part of the defendant to achieve entry into the United States as well as a substantial step toward completing that entry.” United States v. DeLeon, 270 F.3d 90, 92 (1st Cir. 2001). Other circuits are divided. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000), for possible instruction language for attempt. “[T]here is no requirement that the defendant additionally knows that what he proposes to do—i.e., attempt to enter the United States—is for him criminal conduct.” DeLeon, 270 F.3d at 92.

(3) Section 1326(b) provides greater penalties for re-entry by certain aliens, including those previously convicted of certain offenses. The fact of the prior conviction is not an element of the offense, but rather a sentencing factor. Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998); accord United States v. Johnstone, 251 F.3d 281 (1st Cir. 2001) (doubting that the logic of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), applies to section 1326(b) because Apprendi carved out an exception for “the fact of a prior conviction,” but not deciding the issue); United States v. Latorre-Benavides, 241 F.3d 262, 264 (2d Cir. 2001) (holding that Apprendi did not overrule Almendarez-Torres); United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 & n.4 (9th Cir. 2000) (same but noting that “[i]f the views of the Supreme Court's individual Justices and the composition of the Court remain the same, Almendarez-Torres may eventually be overruled”).

(4) In addition to proscribing re-entry and attempted re-entry by aliens after they have been deported, the statute also proscribes re-entry and attempted re-entry by aliens after they have been denied admission, excluded, or removed from the United States, and after they have “departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter.” The relevant occurrence can be substituted for deportation in the instruction.

(5) The definition of “re-enter” comes from Gracidas-Ulibarry, 231 F.3d at 1191 n.3. The definition of “alien” comes from 8 U.S.C. § 1101(a)(3) (1999), and the definition of “national” comes from 8 U.S.C. § 1101(a)(22)(B) (1999).

(6) The Immigration and Naturalization Service can grant consent to apply for re-admission in the Attorney General’s place. That can be explained to the jury in appropriate cases. United States v. Ramirez-Cortez, 213 F.3d 1149, 1158-59 (9th Cir. 2000).

(7) The attempt crime can occur outside of the United States. DeLeon, 270 F.3d at 93. For a discussion of whether it can occur wholly inside foreign territory, see id.