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

By Passafaro, Thomas E. | Suffolk Transnational Law Review, Summer 2017 | Go to article overview

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


Passafaro, Thomas E., Suffolk Transnational Law Review


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' . …

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