Tuesday, April 16, 2013

To Be “Found” Under § 1326, Immigration Authorities—Not Other Officials—Must Discover Alien

United States v. Compian-Torres, No. 11-10921 (Mar. 19, 2013) (Reavley, Prado, Elrod)

To be "found" under § 1326,
(1) immigration authorities must have specifically discovered and noted the alien’s physical presence, and (2) knowledge of the illegality of the alien’s presence must be reasonably attributable to immigration authorities.

Compian-Torres argued that he was "found" when he was arrested for assault in 2004 and that, therefore, the five-year statute of limitations had run on his illegal reentry charge. The panel rejected the Compian-Torres’ argument, even under the de novo standard, finding that he was not found until 2010 when he was transferred to immigration custody after a subsequent arrest for assault. The panel was unwilling to attribute knowledge to ICE of an alien’s physical presence simply because he’d been arrested by local authorities in 2004 and sentenced to the custody of the Bureau of Prisons for violating supervised release in 2006. Yes, that’s right. He was revoked for violating the supervised release from his previous illegal reentry conviction (but not charged with another illegal reentry), sentenced to a few months in BOP custody, and no one told ICE (supposedly).

The panel did not address which standard of review applied (plain error or de novo) since it found that Compian-Torres did not even survive de novo review. In its first unpublished decision in this case issued on October 24, 2012, the panel applied plain error because the appeal was couched in terms of sufficiency but presented a purely legal question that was not preserved in the district court. Compian-Torres filed a petition for rehearing arguing that de novo review applied and citing cases that used a de novo review for a sufficiency claim dependant on a question of legal interpretation. The panel granted the rehearing and addressed the legal question of "found" but did not resolve the  question of which standard of review should apply.

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