The Rainbow Bridge connects Niagara Falls, Ontario, and Niagara Falls, New York. The Canadian side of the bridge is at bottom of this photograph. (Wiki/Verne Equinox)
A deportation-eligible immigrant who was returned to the United States in handcuffs by Canadian border patrol officers had his conviction for being in the United States without legal permission overturned on Tuesday.
The U.S. Court of Appeals for the Second Circuit held that Walter Vasquez Macias could not be convicted of being “found in” the United States illegally because he was forcibly returned by Canadian authorities after attempting to cross into Canada and start a new life.
The reason, Judges Rosemary Pooler (See Profile), Reena Raggi (See Profile) and Richard Wesley (See Profile) said, was that Vasquez’s presence in the United States was involuntary, so “allowing his conviction to stand would constitute manifest injustice.”
The case of United States v. Vasquez Macias, 12-3908-cr, required the Second Circuit to define the limits of 8 U.S.C. §1326, stating that any “alien who…has been…deported, or removed…and thereafter…enters, attempts to enter, or is at any time found in, the United States” is subject to a fine or imprisonment.
Vasquez, a native of Honduras, had what Wesley called a “checkered immigration history” that began when he was detained in California in 1990, left voluntarily, illegally reentered the country and was deported in 2000 after selling drugs to undercover police officers.
Vasquez reentered the country illegally in 2001 and set up an antiques business, but in 2012, he decided to leave, so he traveled from Texas to Niagara Falls, where he walked across the Rainbow Bridge on Jan. 12, 2012.
When Vasquez reached the Canadian side of the bridge, an agent with the Canada Border Services Agency (CBSA) refused him entry and gave him an “Allowed to Leave” document.
The agent then handcuffed Vasquez and handed him over to U.S. Customs and Border Protection officials. He was indicted for being “voluntarily present and found in the United States.”
Vasquez was convicted at trial by a jury before Western District Judge Richard Arcara (See Profile) in 2012 and sentenced to four years in prison.
In the Second Circuit opinion issued Tuesday, Wesley said both sides agreed on the facts, “but [left] it to this Court to determine the meaning of ‘found in’ and whether Vasquez was continuously ‘in the United States’ within the meaning of 8 U.S.C. §1326.”
The government argued that the term “found in” was synonymous with “present in the United States.” Wesley said the circuit had rejected that interpretation.
“Aliens attempting to enter the United States, stopped in analogous circumstances, are not legally in the United States” he said, and, the U.S. Supreme Court “has recognized that a person, denied entry into the United States, might also not be present in any other country.”
The judge cited the case of Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), where the United States detained and refused entry to a once-resident alien returning from Hungary—and every country consulted refused to take him. The alien’s presence on Ellis Island was not entry into the United States, so he was not here, but “neither was in France, Hungary or elsewhere.”
A similar phenomenon occurred in the case of Edward Snowden, who disclosed classified National Security Agency documents, Wesley said. Snowden had his passport rescinded as he fled the United States under suspicion of being a traitor and ended up stranded in the “transit zone” of Moscow’s Sheremetyevo International Airport, considered outside of Russian territory.
“The possibility that Vasquez was outside the United States once he exited our borders finds mixed support in his treatment by customs officials at the border,” Wesley said. “A U.S. CBP official testified that Vasquez was treated, at least in some respects, as though he had never left the United States, but a CBSA agent testified that Vasquez made it far enough that he could not have turned around and returned to the U.S. side of the Rainbow Bridge.”
Wesley said that while Vasquez “undeniably broke the laws of the United States at some point after his 2000 deportation, he is not guilty of the crime of which he was convicted.” The court was not “too troubled by this seeming oddity” as Vasquez faces deportation anyway.
“Moreover, it seems equally anomalous to punish Vasquez for being ‘found in’ the United States when he was only ‘found’ based on his attempt to stop living in the United States unlawfully,” he said. “This would create a disincentive for undocumented, previously-deported aliens to do the one thing that Congress would most like them to do—leave.”
Raggi penned a concurrence in which she analyzed the mens rea element of the statute and said the government failed to prove that Vasquez had intended to return to the United States.
Vasquez was represented on appeal by Jayme Feldman and Tracy Hayes of the Federal Public Defender’s Office in Buffalo.
Assistant U.S. Attorneys Stephan Baczynski and Monica Richards represented the government.
@|Mark Hamblett can be contacted at firstname.lastname@example.org.