U.S. v. Morales-Tovar

• Decision Date: 08 February 1999
• Docket Number: No. DR 98-CR-505 WWJ.,DR 98-CR-505 WWJ.
• Citation: 37 F.Supp.2d 846
• Parties: UNITED STATES of America, Plaintiff, v. Antonio MORALES-TOVAR, Defendant.
• Court: U.S. District Court — Western District of Texas

37 F.Supp.2d 846

UNITED STATES of America, Plaintiff, v. Antonio MORALES-TOVAR, Defendant.

No. DR 98-CR-505 WWJ.

United States District Court, W.D. Texas, Del Rio Division.

February 8, 1999.

Robert Arambide, Assist. U.S. Attorney, for U.S.

William Dietz Fry, Federal Public Defender's Office, Del Rio, TX, for Antonio Morales-Tovar.

MEMORANDUM OPINION

JUSTICE, Senior District Judge.

On October 21, 1998, defendant Antonio Morales-Tovar was indicted with one count of attempting to enter the United States after having been deported from the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1)/(2). If convicted, the defendant faces a maximum of 20 years imprisonment and a $250,000 fine. Pursuant to Fed.R.Crim.P. 23(a), and with the approval of the court and consent of the government, the defendant waived a jury trial. A bench trial was held before this court on January 19, 1999.

In several, important ways, this is a case of first impression. This court has found no record of other defendants who walked up to a United States port of entry, presented truthful identification, and were arrested for attempted illegal re-entry. For two independent and alternative reasons-first, that the government failed to show beyond a reasonable doubt that defendant "attempted" to re-enter, and second, that the government failed to show defendant's specific intent to attempt to illegally re-enter the United States-it is determined that defendant Antonio Morales-Tovar should be acquitted of all charges.

I. Factual Background

The following evidence was credibly adduced at trial. Defendant Antonio Morales-Tovar is a 68 year-old Mexican national. Born in San Lorenzo, Coahuila, Mexico, the defendant became a permanent resident of the United States on December 18, 1958, at the age of 27 years. Over the years, the defendant had eight children in the United States. In 1994, after living in the United States for 38 years, the defendant committed an aggravated felony drug offense. On April 16, 1996, after serving his sentence, the defendant was ordered deported to Mexico by a United States Immigration Judge. The defendant is a Spanish-speaker. Upon deportation, the defendant was served with form I-294, which stated, in Spanish, that the defendant must obtain permission from the Attorney General to apply for admission to the United States within twenty years of committing an aggravated felony.

On September 30, 1998, allegedly in deteriorating health and missing his family the defendant went to the port of entry at Del Rio, Texas. The defendant was accompanied by an employer, who drove him to the bridge on the Mexican side. The two walked to the port of entry in Del Rio. The defendant then engaged in a conversation with the immigration authorities, the exact nature of which is not on record. Defendant's companion understood that the defendant needed to return to the port of entry with identification.

The defendant returned to the Del Rio port of entry the following morning, on October 1, 1998. The defendant brought his Mexican birth certificate and his Mexican labor union card, which was a photo ID. The defendant approached an immigration inspector at "secondary inspection." The defendant spoke to the immigration inspector in Spanish, but there is no record of the exact wording of the defendant's query. According to the immigration inspector, who speaks a "workable amount" of Spanish, the defendant wanted to replace his resident alien card. The defendant was not asked at that time if he had been previously deported.

The defendant was asked for identification, which he provided. When a computer check revealed that defendant had been previously deported, he was then patted-down and read his Miranda rights. When asked, the defendant readily admitted that he had previously been deported. The defendant never gave a false name, nor did he ever present false documents. There is no evidence in the record to indicate that the defendant ever lied about his immigration status. There is also no evidence that the defendant ever attempted to elude inspection of immigration officials.

The defendant gave a sworn statement to the immigration authorities that is recorded in an Immigration and Naturalization Service (INS) form I-867B entitled "Record of Sworn Statement in Proceedings." The officer taking the statement simultaneously transcribed the defendant's answers from Spanish into English and then typed them in the INS form. The first section of the form, read by the officer to the defendant, states:

I am an officer of the United States Immigration and Naturalization Service. I am authorized to administer the immigration laws and to take sworn statements. I want to take your sworn statement regarding your application for admission to the United States.

Government Exhibit 2 (emphasis added.) Other than in this section of the form, the record does not reflect that the defendant actually applied for admission to the United States on October 1, 1998. Another paragraph of the INS form I-867B, also read by the officer to the defendant, states that "[t]his may be your only opportunity to present information to me and the Immigration and Naturalization Service to make a decision." Id.

The defendant, who apparently does not speak English, signed the INS sworn statement form containing his answers in English. According to the signed sworn statement, the defendant stated that he came to the port of entry to re-apply for a resident alien card. The defendant stated that he wanted to go to Del Rio to be with his sons and that he would work at a restaurant in Del Rio. The defendant further stated that his resident alien card had been lost or stolen in Mexico. No evidence supporting or refuting this claim was presented at trial.

II. The Law

The defendant was charged with violating 8 U.S.C. § 1326, which makes it a crime for him to enter, attempt to enter, or be found in the United States after he was deported for the commission of an aggravated felony. Those same provisions provide that such an person may re-enter if, "prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission...." 8 U.S.C. § 1326(a)(2)(A). The statute gives no direction regarding how to obtain such permission from the Attorney General.

Nearly all cases brought under this statute have concerned defendants who were caught in the United States, cases in which the defendant had, necessarily, illegally re-entered the country. There are two attempt-based § 1326 cases that have come before the Fifth Circuit. In one, the defendant arrived at New Orleans International Airport from Cost Rica and presented a falsified passport to immigration authorities. U.S. v. Saenz-Forero, 27 F.3d 1016 (5th Cir.1994). A second case involved a person previously deported who falsely declared to Immigration Inspectors that he was a U.S. citizen returning to his birth-place of Denver, Colorado. U.S. v. Cardenas-Alvarez, 987 F.2d 1129 (5th Cir. 1993). Regarding such an attempt-based charge, the Fifth Circuit read 8 U.S.C. § 1326 to require that the government prove four elements beyond a reasonable doubt:

1) the defendant was an alien at the time of the alleged offense;

2) the defendant had previously been arrested and deported;

3) the defendant attempted to enter the United States; and

4) the defendant had not received the express consent of the Attorney General of the United States to apply for readmission to the United States since the time of his previous arrest and deportation.

U.S. v. Cardenas-Alvarez, 987 F.2d 1129, 1131-1132 (5th Cir.1993).

III. Analysis

A. The government has not proven beyond a reasonable doubt that defendant attempted to re-enter.

In the instant action, the only contested aspect of the offense is the third element, i.e., that the defendant attempted to enter the United States. The government argues that the defendant stated, at the Del Rio port of entry, that he wanted to replace his resident alien card, and that this amounted to an attempt to enter the United States under the statute. Counsel for the defendant disputes this, arguing that the defendant, his health worsening and missing his family, was abiding by the law by going to the port of entry to find out what he had to do to re-enter the United States. There is no evidence that the defendant ever actually applied for admission to the United States.

At best, the court is faced with alternative, plausible explanations for defendant's actions. It is undisputed that the defendant has not received the express consent of the Attorney General of the United States to apply for readmission to the United States. However, pursuant to 8 C.F.R. § 2.1, the port of entry is delegated the authority of the Attorney General to process such a waiver. Furthermore, according to 8 C.F.R. § 212.2, a person who has been deported or removed from the United States can, at a port of entry, apply for permission to reapply for admission.¹

Forms for waivers from the Attorney General are available at the port of entry where the defendant was arrested. If someone were to know to ask for such a form, the immigration service would give them one. The senior inspector in charge of the defendant's case was aware of that there are different kinds of waivers that allow someone who has been deported to return to the U.S., although he did not know specifically what those waivers are. However, the senior inspector was aware that forms for such waivers are available at the port of entry. The defendant was never offered, nor given, such a form for a waiver from the Attorney General. It is a plausible (and even likely possibility) that if the defendant had been given such a form, he would have simply left the port of entry and returned to Mexico.

It is determined that there is not credible evidence...