Thursday, February 13, 2020

9th Cir. On "eludes examination or inspection by immigration officers"

Sumas, WA, POE; photo CBP

Under 8 U.S.C. § 1325, it is a crime for a noncitizen to "elude[] examination or inspection by immigration officers." In the June decision of U.S. v. Corralez-Vasquez, 931 F.3d 944 (9th Cir. 2019), Ninth Circuit Judges Bybee and Wardlaw concluded that a noncitizen "who crosses into the country at a non-designated time or place" cannot be guilty under this provision, which applies exclusively to conduct "at a port of entry that is open for inspection." Judge Fernandez dissented.

That may not seem like a big deal in the abstract, but most individuals charged with violating § 1325 were found not at a port of entry and were convicted on the basis of having eluded examination or inspection. (Insert Scooby-doo "ruh roh" here.)

Accordingly, the government sought a rehearing en banc. They didn't get it.

What's the consequence? The Voice of San Diego interviewed Doug Keller, an attorney with the Federal Defenders of San Diego, who said this:

"The U.S. Attorney’s Office and defense counsel are working together to identify all cases that must be dismissed... Under Corrales-Vazquez, every single defendant who pled guilty to illegal entry in the Southern District of California during the first year of Operation Streamline was factually innocent of the charged crime. The approximately 500 defendants who have their case on appeal should have their conviction vacated soon. There are several thousand other defendants who didn’t appeal. Those defendants can try to get their conviction overturned, too.”

Zoinks indeed.


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