Previously Deported Noncitizen Apprehended at Port of Entry While Leaving the United States is “Found In” Under § 1326

US v. Quezada Rojas, No. 13-50926 (5th Cir. Oct. 30, 2014) (Smith, Barksdale, Hayne)

Quezada Rojas was on a bus headed into Mexico when the bus was stopped by U.S. Border Patrol agents conducting inspections of outbound traffic.  Upon questioning, Quezada Rojas admitted that he was previously deported.  

In his Rule 29 motion and on appeal, Quezada Rojas argued that he was neither “found” nor “in” the United States at the time of arrest.  He argued that “found,” as used in § 1326, requires an alien to be discovered, and he was not discovered or found by immigration authorities since he voluntarily approached the port of entry. See United States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000).  The panel rejected that argument, limiting the voluntariness precedent to aliens seeking to enter not exit the United States.  Quezada Rojas also argued that he was not “in” the United States because he was not free from official restraint.  The panel disagreed, stating that the Fifth Circuit has never explicitly adopted the doctrine of official restraint and that, even if it did, Quezada Rojas would not fall within the “official restraint” parameters since he was leaving the United States after having worked in Colorado free from restraint.

So, noncitizens with prior removal orders who are apprehended at the border while trying to return to their home countries will first have to spend months or years in a BOP facility, at least so long as prosecutors think such prosecutions are a good use of resources.