Illegal Reentry: No Attempt Conviction for Standing in a Watched Border Area

In a 2017 case, the Ninth Circuit reversed the attempted illegal reentry conviction of a man who washed car windows in the pre-inspection area of a border crossing. He was on U.S. soil, but he was never free of the officers' watch and control, and the jury was never told that this mattered.

Under 8 U.S.C. § 1326, it is a crime for someone who was deported to come back into the U.S. without permission. To be guilty of attempting to reenter, a person must intend to enter "free from official restraint." That means free to go wherever he wants in the country, not still under the watch and control of border officers.

The Facts

In United States v. Vazquez-Hernandez, Rosario Vazquez-Hernandez earned money washing car windows at a border crossing from Mexico into Arizona. The inspection station sits on U.S. territory, so people coming from Mexico are on U.S. soil before officials inspect them. Vendors and window washers on foot often walk into the northbound lanes.

That pre-inspection area is watched by "hundreds of U.S. government cameras." Officers stationed at the border, armed with automatic rifles, can screen people entering it and stop them. Sometimes agents arrest people they think lack legal status, without asking whether they meant to go any further into the U.S.

Before his 2014 arrest, Vazquez-Hernandez had been removed from the U.S. three times and once convicted of illegal reentry. He went into the pre-inspection area to wash windows almost every day. On April 5, 2014, two Border Patrol agents saw him on camera, became suspicious of his intentions, and arrested him.

What the Government Had to Prove

He was charged with attempted illegal reentry under § 1326. The trial judge told the jury the government had to prove beyond a reasonable doubt that:

1. He had been removed or deported from the U.S.;
2. He consciously wanted to enter the U.S. without consent;
3. He was not a U.S. citizen when he tried to reenter;
4. He did not have consent from the Attorney General or Secretary of Homeland Security to reapply for admission; and
5. He took a substantial step toward committing the crime.

The only element in dispute was intent.

The Jury Instruction Problem

On appeal, he argued the evidence was not enough to convict. He also pointed to a problem with the jury instructions.

During deliberations, the jury asked whether he had to intend to stay in the U.S. The judge simply referred them back to the instructions.

He did not directly challenge the instruction, but the faulty instruction was part of his argument that "no jury could have determined that he entered the United States free from official restraint." Because the instruction failed to tell the jury an essential element of the crime, the court reviewed it for plain error, meaning an obvious mistake serious enough to fix even though no one objected at trial.

Attempted reentry is a specific intent crime. Under United States v. Lombera-Valdovinos, "an alien has not entered the United States under section 1326 unless he does so 'free from official restraint.'" So the government had to prove beyond a reasonable doubt that he specifically intended to enter without consent and free from official restraint. The instruction left that out, which was plain error.

That missing piece mattered especially here. He was on U.S. soil only in the pre-inspection area, and he said he never meant to go past the inspection point. That made his intent under the law unclear.

Why the Error Affected His Substantial Rights

Leaving "free from official restraint" out of the instruction affected his substantial rights, meaning it likely changed the outcome of the trial.

The prosecution argued that just entering the pre-inspection area, even to wash windows and go back to Mexico, counted as "entry." The court rejected that view:

"The official restraint doctrine was intended to safeguard the presence of uninspected immigrants in precisely the type of area in to which Vazquez-Hernandez entered and where he remained. The freedom from official restraint requirement addresses the practical concern that failing to require such a finding would lead to the criminalization of individuals who arrive at a port of entry but have not yet had an opportunity to apply for inspection."

The area was so closely watched that no one there was really free of restraint. The test is whether a person was free to "go at large and at will within the United States," and he was not. The jury's question showed it was focused on his presence in the area, not on any intent to go further. The faulty instruction let the jury rely on a wrong legal theory.

The court said that "no rational jury could have concluded beyond a reasonable doubt that Vazquez-Hernandez was free from official restraint in this area, or that he intended to be by entering it." So the instruction was plain error. The court also found the evidence was not enough to show he "intended to go beyond the pre-inspection area so as to be free to go at large and at will within the United States."

The Ninth Circuit vacated the conviction and sent the case back for entry of a judgment of acquittal.

What This Means for Reentry Cases

Where a person was arrested, and what he intended, can decide an attempted reentry case. Two practical points stand out. First, the defense lawyer should ask the judge to tell the jury about the "official restraint" requirement and should object, before the jury deliberates, if the instruction leaves it out. Federal Rule of Criminal Procedure 30(d). Without an objection, an appeals court reviews only for plain error, as it did here. Second, if a conviction is entered, the notice of appeal is generally due within 14 days after the judgment. FRAP 4(b)(1)(A).

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