For Purposes of Illegal Reentry, Alien Who Departs U.S. Before Being Ordered Removed Has Been "Removed" If Removal Order Later Issues

United States v. Ramirez-Carcamo, No. 08-30298 (5th Cir. Feb. 17, 2009) (Smith, Southwick, Rodriguez, D.J.)

Submitted for your consideration: an offense that doesn't obey the rules of all the others in the U.S. Code. Some of the elements can be proven by paper, notwithstanding a defendant's right to confront the witnesses against him. The maximum penalty increases five- or ten-fold based on the existence and nature of a defendant's prior criminal convictions, notwithstanding a defendant's double jeopardy right to not be punished more than once for a single offense. And the fact of a prior conviction need not be alleged in the indictment or proven to a jury beyond a reasonable doubt, notwithstanding the general rule that facts which increase the maximum penalty for an offense must be alleged and proven in that manner. What's more, sentences for this offense often exceed those for drug or gun offenses, and even offenses involving an actual victim. And now, we learn that this offense doesn't even obey the normal rules of statutory construction, like the rule that every word of a statute must be given effect, or the rule of lenity. It is an offense which we call "Illegal Reentry."

Meet one Olvin Ramirez-Carcamo, a citizen of Honduras. Border Patrol agents apprehended him near Eagle Pass, Texas on September 17, 2005. Lacking sufficient funds to detain Ramirez, the agents sent him on his way with a notice to appear before an immigration judge to show cause why he was not subject to removal from the United States. "No date or time for the appearance was stated. The Notice to Appear indicated the timing would be established later. Ramirez-Carcamo was required to report, in writing or in person, to a deportation officer on October 1, 2005. Further, if he did not appear at his removal hearing after being told of its scheduling, the Notice informed him that an immigration judge could order removal in his absence."

Ramirez did not report to a deportation officer on October 1st, nor did he appear at the removal hearing which at some point was set for January 20, 2006. That's because he boarded a plane in Miami on September 28, 2005---eleven days after his apprehension by Border Patrol---and flew to El Salvador. The immigration judge ordered Ramirez's removal in absentia on January 20, 2006.

Fast-forward to August 2007, when Ramirez was arrested for traffic violations in Louisiana and then turned over to Border Patrol. He told them he had reentered the United States---sans permission to do so---one year earlier.

That arrest led to Ramirez's indictment for illegally reentering the United States after removal, in violation of 8 U.S.C. § 1326. He moved to dismiss the indictment on the ground that one of the elements was not met, i.e., that he had not previously been "removed" from the United States because he voluntarily departed the country before the January 2006 removal order issued. The district court denied the motion. Ramirez entered a conditional guilty plea, and appealed.

Not surprisingly, Ramirez rested his argument on the text of § 1326(a), which makes it a crime for an alien to reenter the United States without first applying for the requisite permission, if the alien "has [previously] been denied admission, excluded, deported, or removed, or has departed the United States while an order of exclusion deportation, or removal is outstanding . . . ."

Ramirez-Carcamo submits that “removal” means the physical act of being transported outside of the United States instead of the issuance of an order of removal. He left before any order of removal was issued and argues he therefore was never “removed” for purposes of Section 1326. He submits that if “removed” means leaving by force of a legal order, then a later portion of the statute – departure “while an order of removal is outstanding” – is superfluous. An important statutory construction principle is “that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks omitted). We must also remember, though, that canons of statutory interpretation are only guides. Chickasaw Nation v. United States, 534 U.S. 84, 85 (2001).

The court, as you know by now, rejected Ramirez's argument. After a largely unnecessary examination of the way § 1326 has been amended over the years, and a review of some cases involving a prior version of the statute, the court finally alighted on 8 U.S.C. § 1101(g). That provision reads:

For the purposes of this chapter any alien ordered deported or removed (whether before or after the enactment of this chapter) who has left the United States, shall be considered to have been deported or removed in pursuance of law, irrespective of the source from which the expenses of his transportation were defrayed or of the place to which he departed.

The court, for reasons not apparent to me from the text of § 1101(g), "interpret[ed] it to override the distinction Ramirez-Carcamo is making, that if the order of removal is entered after an alien has physically departed, there has in law been no 'removal.'" Ramirez, naturally, countered that "this provision applies only to aliens who depart after issuance of a removal order. Not so, said the court:

. . . Section 1101(g) does not state, and, to our ears, does not even suggest that the removal order or the departure must always be first. No matter whether the removal order comes first and the alien then departs, or, as here, the departure comes first and then removal is ordered in absentia, the alien ultimately is outside the country with an enforceable order requiring that he have exited. When both have occurred, the person is “considered to have been . . . removed in pursuance of law.” 8 U.S.C. § 1[1]01(g).

So what about Ramirez's argument that reading "removal" in this way effectively renders the departure-while-order-of-removal-outstanding clause superfluous? After dismissing the canons of construction as merely "guides," the opinion simply drops the matter without attempting to salvage this now apparently vestigial predicate to illegal-reentry liability.

The court concludes the opinion thusly:

In conclusion, we emphasize certain aspects of the chronology. At the time of his capture on September 17, 2005, Ramirez-Carcamo signed a Notice to Appear. The notice warned that the immigration judge could order removal in absentia if he did not appear at the removal proceedings. Rather than appear at the proceedings, Ramirez-Carcamo left the country. The threatened order was entered in absentia. We conclude, based on our analysis of the statutory language, that aliens do not avoid prosecution under Section 1326 by refusing to comply with their obligation to appear at removal proceedings and instead departing in advance of the removal order. If the removal order is thereafter entered in absentia, it has the same effect for prosecutions under Section 1326 as would a departure after the removal order.

Is the court suggesting that the statute needs to be read this way in order to prevent wily aliens from escaping § 1326 liability by voluntarily leaving the country prior to the issuance of a removal order? Seems far-fetched to me. More importantly, if § 1101(g) is ambiguous on this point, then the court should have applied the rule of lenity and resolved that ambiguity in favor of the defendant. Even if other canons of construction are merely "guides," surely the due-process aspects of the rule of lenity warrant its application here.

A final note: given the court's difficulty in parsing the (concededly confusing) INA, some amicus assistance from an immigration expert might have been helpful. Unfortunately, as Orin Kerr discussed some while back---in a post I am now unable to find at the Volokh Conspiracy---it is often difficult for potential amici to identify cases at the circuit court level in which their expertise could assist the court.