Everyone agrees that it's illegal to "enter" the United States illegally after being deported. But assume a defendant isn't charged with that, but is instead, charged with being "found" in the United States after being deported. With respect to that offense, everyone agrees that to be "found" in the United States illegally, you've got to be actually found there. If only because that's what the statute says. So if you leave the United States before you're found, you're not guilty. Consider it akin to withdrawing from a conspiracy, but in the immigration context.
Given those precepts, how should the following hypothetical come out: Defendant lives in the United States illegally, decides to leave, goes to another country (illegally), gets caught there, and then is returned to the United States against his will. Guilty of being illegally found in the United States?
The Ninth Circuit says "Yes."
This seems dubious to me. Sure, you were "found" in the United States. But you were also there against your will -- here, the defendant was begging not to be returned, for fear that he'd be killed in prison. Moreover, it's not as if he was found living freely in the United States. He was only "found" in the United States because United States officials were waiting for him at the border the second the Canadian officers handed him over to them. In other words, he was under official restraint the whole time, which typically means that you're not guilty.
The Ninth Circuit concludes, however, that even though someone who leaves the United States isn't "found" there and breaks the chain required for a conviction, individuals like the defendant here are not "found" anywhere else because they were not legally in the other jurisdiction (here, Canada). But where does that requirement come from? Certainly not from the word "found," which doesn't have any legality component at all. It seems to me that once someone leaves the U.S., they are "found" elsewhere, legally or not.
This holding also seems to me to have some really perverse consequences. For example, imagine that a guy illegally lives in the United States for a tiny bit, but then decides to return to his home in Honduras permanently. He's had a change of heart. He now realizes it's wrong to be an illegal alien. He'd like to get back to Honduras as quickly as possible, but doesn't have enough money for a flight, so takes a bus. He leaves the United States, and travels the entire length of Mexico, but two miles from the border with Honduras, he's picked up by Mexican authorities for being illegally in Mexico. He pleads with them to send him to Honduras, but the Mexican authorities refuse, and instead fly him to the United States, at which point he's immediately arrested. According to the Ninth Circuit, the defendant here is guilty of being "found" in the United States upon his return. But that seems silly. He did everything he could to leave. He shouldn't be guilty just because his attempt to leave the United States was initially successful but ultimately was frustrated by government officials.
Or imagine this one: Same defendant, same process, and two miles from the border, Mexican authorities arrest the defendant on a trumped-up charge in order to coerce a bribe. Defendant has no money, and begs to be delivered to Honduras, but Mexican authorities refuse, saying that they'll send him back to the U.S. unless he can pay. He can't, so they do. Defendant can prove all this. The Ninth Circuit would still say he's guilty, since he was not yet "legally" in his home country.
I think a contrary rule is preferable. If a guy can establish that he intended to leave the United States permanently, and in fact leaves the country, I don't think he's "found" in the U.S. just because officials from a foreign country subsequently put him there against his will. It may be hard to prove that this was the defendant's intent, but if he can, I think that's good enough. He left. His crime -- at least the "found" one -- has terminated. Sure, he can still be deported, and returned to his home country. Or perhaps even charged in the other country for trying to enter illegally there. But can't be imprisoned in the United States on the ground that he was "found" there after authorities placed him there against his will.
It seems to me that this rule avoids all the bad consequences of the Ninth Circuit's holding, obtains nearly all the benefits of it, and avoids a conflict with both precedent and the text of the statute. Plus, it just seems fairer. A guy who does all he can do to leave the United States -- and does -- shouldn't be guity of being "found" in the U.S. involuntarily.
So I'm going to have to disagree with Judges Willie Fletcher, Ray Fisher and James Jones (sitting by designation from Virginia) on this one.
Which, by my count, makes the vote of Article III judges still 3-0. But if one were to count my non-Article III, tenured bottom, it'd be 3-1. Which surely is worth something, no?