Summary
holding that good faith belief that visa constituted the required permission of Attorney General is not a defense to prosecution under Section 1326
Summary of this case from United States v. Gonzalez-ChavezOpinion
No. 96-1855.
February 12, 1997.
Richard N. Foley, Portsmouth, for appellant.
Jean B. Weld, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief for appellee.
Appeal from the United States District Court for the District of New Hampshire, [Hon. Steven J. McAuliffe, U.S. District Judge]
Before: Stahl, Circuit Judge, Aldrich and Campbell, Senior Circuit Judges.
Defendant Eliezer Lara Soto (hereinafter defendant), a citizen of the Dominican Republic, unlawfully entered the United States in 1986. He was deported in November 1993. He subsequently obtained a visa and reentered in August 1994 without having obtained the necessary permission of the Attorney General, a violation of 8 U.S.C. §(s) 1326. After a three day jury trial, defendant was found guilty.
Title 8 U.S.C. §(s) 1326 provides that an offense against the United States occurs when:
(a) [A]ny alien who —
(1) has been arrested and deported or excluded and deported, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) 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; or (B) with respect to an alien previously excluded and deported, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act . . . .
I.
Prior to trial, defendant moved to quash or dismiss the indictment by attacking the earlier deportation order entered after a hearing in his absence, on the ground of lack of notice. According to the defendant, he failed to receive either of two letters sent by the Immigration and Naturalization Service ordering him to appear first on December 1, 1992 and again on January 5, 1993. The court denied the motion, finding that certified mail notice had been given to defendant's proper address with the return receipt bearing his signature, which the court found genuine. Nor would he have had any defense on the merits. We agree that the deportation order was valid.
II.
Defendant's only other defense to the present prosecution was his testimony that he entered in good faith, believing that his visa constituted the required permission. The court instructed the jury that it was not, and that good faith was not a defense.
The district court noted that of all the circuits considering this statute, only the Seventh Circuit in United States v. Anton, 683 F.2d 1011, 1014 (7th Cir. 1982) (2-1) required the government to show specific intent. We are more impressed with dissenting Judge Posner's thinking that an alien who has broken our laws once should not be given the benefit of the doubt. See id. at 1019-22 (collecting cases). It is appropriate that the reentry law have teeth. The appeal is without merit.
Affirmed.