The defendant is charged in [Count _______ of] the indictment with [bringing] [attempting to bring] an alien to the United States in violation of Section 1324(a)(1)(A)(i) of Title 8 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, the defendant [brought] [attempted to bring] a person who was an alien to the United States at a place other than a designated port of entry or at a place other than as designated by a United States immigration official;

            Second, the defendant knew that the person was an alien; [and]

            Third, the defendant acted with the intent to violate the United States immigration laws by assisting that person to enter the United States at a time or place other than as designated by a United States immigration official[.] [; and]

            [Fourth, the defendant did something that was a substantial step toward committing the crime.

            A “substantial step” is conduct that strongly corroborated a defendant’s intent to commit the crime.  To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.  Mere preparation is not a substantial step toward committing a crime.  

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.]

            An alien is a person who is not a natural-born or naturalized citizen of the United States.

Comment

            Bringing an alien to the United States does not require that the alien be free from official restraint as is required for offenses under 8 U.S.C. § 1326 for aliens illegally reentering or being found in the United States.  United States v. Lopez, 484 F.3d 1186, 1193 (9th Cir. 2007); United States v. Hernandez-Garcia, 284 F.3d 1135, 1137-38 (9th Cir. 2002); see also Comment to Instruction 7.6 (Alien—Deported Alien Reentering United States Without Consent).

            The offense of bringing an alien to the United States is a continuing offense; “although all of the elements of the ‘bringing to’ offense are satisfied once the aliens cross the border, the crime does not terminate until the initial transporter who brings the aliens to the United States ceases to transport them—in other words, the offense continues until the initial transporter drops off the aliens on the U.S. side of the border.”  Lopez, 484 F.3d at 1187-88.  Thereafter, the offense is illegal “transport within” the United States, 8 U.S.C. § 1324(a)(1)(A)(ii).  Id. at 1194-98.  Lopez overrules United States v. Ramirez-Martinez, 273 F.3d 903 (9th Cir. 2001) (applying immediate destination analysis of whether alien had reached ultimate or intended destination within United States); United States v. Angwin, 271 F.3d 786, 271 F.3d 786 (9th Cir. 2001) (same).  Lopez, 484 F.3d at 1191. 

            Aiding and abetting, involving a state-side transporter, requires proof of the specific intent to facilitate the commission of the “bringing to” offense and evidence that the state-side transporter involved himself in the bringing to offense prior to its completion.  See United States v. Singh, 532 F.3d 1053, 1057-59 (9th Cir. 2008).  Aiding and abetting a “bringing to” offense may take place entirely on the United States side of the border.  United States v. Noriega-Perez, 670 F.3d 1033, 1040 (9th Cir. 2012).

            Statutory maximum sentences under § 1324 are increased for offenses causing serious bodily injury, placing the life of any person in jeopardy, or resulting in the death of a person.  In such cases, a special jury finding is required.

            An alien is also defined as being a person who is not a national.  In the rare event that there is an issue as to the alien being a national, the definition of alien in the last paragraph of the instruction should be modified accordingly.  See 8 U.S.C. § 1101(a)(22); Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 967-68 (9th Cir. 2003); United States v. Sotelo, 109 F.3d 1446, 1447-1448 (9th Cir. 1997).

            The bracketed language stating an additional element applies only when the charge is an attempt.  In attempt cases, “[t]o constitute a substantial step, a defendant’s ‘actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances’.”  United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)). 

            The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.  United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).

            “[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.”  United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).

Revised May 2023 

             The defendant is charged in [Count _______ of] the indictment with [attempted] illegal transportation of an alien in violation of Section 1324(a)(1)(A)(ii) of Title 8 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, [name of alien] was an alien; 

            Second, [name of alien] was not lawfully in the United States; 

            Third, the defendant [knew] [acted in reckless disregard of the fact] that [name of alien] was not lawfully in the United States; [and] 

            Fourth, the defendant knowingly [[transported or moved] [attempted to transport or move]] [name of alien] to help [him] [her] remain in the United States illegally[.] [; and] 

            [Fifth, the defendant did something that was a substantial step toward committing the crime. 

            A “substantial step” is conduct that strongly corroborates a defendant’s intent to commit the crime.  To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.  Mere preparation is not a substantial step toward committing the crime.

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.] 

            An alien is a person who is not a natural-born or naturalized citizen of the United States. An alien is not lawfully in this country if the person was not duly admitted by an immigration officer. 

            A person acts with reckless disregard if: (1) the person is aware of facts from which a reasonable inference could be drawn that the alleged alien was in fact an alien in the United States unlawfully; and (2) the person actually draws that inference. 

Comment 

            See Comment to Instruction 7.1 (Alien—Bringing or Attempting to Bring to the United States (Other than Designated Place)). 

            “Reckless disregard” is not defined in Title 8, United States Code, but the Ninth Circuit has clarified that “reckless disregard” includes both an objective prong and a subjective prong.  United States v. Rodriguez, 880 F.3d 1151, 1161 (9th Cir. 2018) (“[A] correct definition of ‘reckless disregard,’ consistent with Supreme Court and Ninth Circuit law, would include ‘the defendant’s disregard of a risk of harm of which the defendant is aware.’”) (internal brackets omitted).  

            Statutory maximum sentences under § 1324 are increased for offenses done for commercial advantage or private financial gain, or which caused serious bodily injury, placed the life of any person in jeopardy, or resulted in the death of a person.  In such cases, a special jury finding is required. 

            If the defendant is charged with transportation of illegal aliens resulting in deaths under 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(iv), the government must prove beyond a reasonable doubt that the defendant’s conduct was the proximate cause of the charged deaths.  United States v. Pineda-Doval, 614 F.3d 1019, 1026-28 (9th Cir. 2010).  In such cases, the instruction should be modified to instruct on the proximate cause element of “resulting in death.” 

            The bracketed language stating an additional element applies only when the charge is an attempt.  In attempt cases, “[t]o constitute a substantial step, a defendant’s ‘actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances’.”  United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)). 

            The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same). 

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.  United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010). 

            “[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.”  United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003). 

Revised May 2023

             The defendant is charged in [Count _______ of] the indictment with [attempted] harboring of an alien in violation of Section 1324(a)(1)(A)(iii) of Title 8 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, [name of alien] was an alien; 

            Second, [name of alien] was not lawfully in the United States; 

            Third, the defendant [knew] [acted in reckless disregard of the fact] that [name of alien] was not lawfully in the United States; [and] 

            Fourth, the defendant [[harbored, concealed, or shielded from detection] [attempted to harbor, conceal, or shield from detection]] [name of alien] with intent to violate the law[.] [; and] 

            [Fifth, the defendant did something that was a substantial step toward committing the crime. 

            A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime.  To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.  Mere preparation is not a substantial step toward committing the crime.

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.] 

            An alien is a person who is not a natural-born or naturalized citizen of the United States.  An alien is not lawfully in this country if the person was not duly admitted by an Immigration Officer. 

            A person acts with reckless disregard if: (1) the person is aware of facts from which a reasonable inference could be drawn that the alleged alien was in fact an alien in the United States unlawfully; and (2) the person actually draws that inference.

Comment 

            See Comment to Instructions 7.1 (Alien—Bringing or Attempting to Bring to United States (Other than Designated Place)) and 7.2 (Alien—Illegal Transportation or Attempted Illegal Transportation). 

            Statutory maximum sentences under § 1324 are increased for offenses done for commercial advantage or private financial gain, or which caused serious bodily injury, placed the life of any person in jeopardy, or resulted in the death of a person.  In such cases, a special jury finding is required.

            The defendant acts with “reckless disregard” only if “the defendant herself [is] aware of facts from which an inference of risk could be drawn and the defendant . . . actually draw[s] that inference.”  United States v. Tydingco, 909 F.3d 297, 304 (2018) (emphasis in original) (citing United States v. Rodriguez, 880 F.3d 1151, 1159-62 (9th Cir. 2018)). 

            The defendant must “intend[] to violate the law.”  Tydingco, 909 F.3d at 302-03.  Prior versions of this instruction required the jury to specifically find that the defendant harbored the alien “for the purpose of avoiding the alien’s detection by immigration authorities.”  However, although proving that the defendant sought to avoid the alien’s detection is one way to demonstrate the requisite intent, it is not the only way.  Id. at 304.  “For example, a defendant who chooses to publicize her harboring of an illegal alien to call attention to what she considers an unjust immigration law intends to violate the law, even though she does not intend to prevent detection.”  Id. 

            The bracketed language stating an additional element applies only when the charge is an attempt.  In attempt cases, “[t]o constitute a substantial step, a defendant’s ‘actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances’.”  United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)). 

            The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same). 

            “To harbor” means to provide “shelter to.”  Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1017 n.9 (9th Cir. 2013).  

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.  United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010). 

            “[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.”  United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).

Revised May 2023

         The defendant is charged in [Count _______ of] the indictment with encouraging illegal entry by an alien in violation of Section 1324(a)(1)(A)(iv) of Title 8 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

First, [name of alien] was an alien;

Second, the defendant encouraged or induced [name of alien] to [come to] [enter] [reside in] the United States in violation of law; and

Third, the defendant [knew] [acted in reckless disregard of the fact] that [name of alien]’s [coming to] [entry into] [residence in] the United States would be in violation of the law.

An alien is a person who is not a natural-born or naturalized citizen of the United States. An alien enters the United States in violation of law if not duly admitted by an Immigration Officer.

For purposes of this statute, the term “encourage or induce” means the intentional encouragement of an unlawful act or the provision of assistance to a wrongdoer with the intent to further the commission of an offense.

Comment 

See Comment to Instructions 7.1 (Alien—Bringing or Attempting to Bring to United States (Other than Designated Place)) and 7.2 (Alien—Illegal Transportation or Attempted Transportation).

Statutory maximum sentences under § 1324 are increased for offenses done for commercial advantage or private financial gain, or which caused serious bodily injury, placed the life of any person in jeopardy, or resulted in the death of a person. In such cases, a special jury finding is required.

The terms “encourage[]” or “induce[]” are used in their “specialized, criminal-law sense—that is, as incorporating common-law liability for solicitation and facilitation.”  United States v. Hansen, 599 U.S. 762, 774 (2023). “[S]olicitation is the intentional encouragement of an unlawful act” and facilitation “is the provision of assistance to a wrongdoer with the intent to further an offense’s commission. Id. at 771 (citations omitted); see also United States v. Hansen, 97 F.4th 677, 681 (9th Cir. 2024). “[S]olicitation is complete as soon as the encouragement occurs” whereas liability for facilitation “requires that a wrongful act be carried out.” Hansen, 599 U.S. at 774For both crimes, “words may be enough.” Id. The terms “encourage[] or induce[]” also “carry” the “traditional mens rea” requirement for the crimes of solicitation and facilitation. Id.at 780.

The scope of 8 U.S.C. § 1324(a)(1)(A)(iv) is not limited to conduct involving unlawful means (e.g., fraud, false documents, or fraud against the government) or conduct that provides no legitimate benefit to the alien. United States v. Sineneng-Smith, 982 F.3d 766, 773-74 (9th Cir. 2020), cert. denied, 142 S. Ct. 117 (Mem.) (2021). 

Revised June 2024

           The defendant is charged in [Count _______ of] the indictment with [bringing] [attempting to bring] an alien to the United States [knowing] [in reckless disregard of the fact] that the alien has not received prior official authorization to [come to] [enter] [reside in] the United States.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant [brought] [attempted to bring] a person who was an alien to the United States [for the purpose of the defendant’s [commercial advantage] [private gain]] [and upon arrival did not immediately bring and present the alien to an appropriate immigration official at a designated port of entry] [with the intent or with reason to believe that the alien will commit an offense against the United States or any state punishable by imprisonment for more than one year]; 

            Second, the defendant [knew] [was in reckless disregard of the fact] that the person was an alien who had not received prior official authorization to [come to] [enter] [reside in] the United States; [and] 

            Third, the defendant acted with the intent to violate the United States immigration laws[.] [; and] 

            [Fourth, the defendant did something that was a substantial step toward committing the crime. 

           A “substantial step” is conduct that strongly corroborates a defendant’s intent to commit the crime.  To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.  Mere preparation is not a substantial step toward committing the crime.

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.] 

            An alien is a person who is not a natural-born or naturalized citizen of the United States. 

Comment 

            See Comment to Instructions 7.1 (Alien—Bringing or Attempting to Bring to the United States (Other than Designated Place)) for “aiding and abetting” and “bringing to” the United States and 7.2 (Alien—Illegal Transportation or Attempted Transportation) for “reckless disregard.” 

            This is a separate crime from 8 U.S.C. § 1324(a)(1)(A)(i) (as to that statutory provision, see Instruction 7.1).  Nevertheless, the two crimes share the same elements.  Both require that the alien lack prior authorization to enter the United States, but §1324(a)(1)(A)(i) requires that the entry be at a place not designated as a port of entry.  United States v. Barajas-Montiel, 185 F.3d 947, 951 (9th Cir. 1999).  

            The instruction should be modified to reflect which subsection in § 1324(a)(2)(B) is charged: (i) an offense committed with the intent or with reason to believe that the alien will commit an offense against the United States or any state punishable by imprisonment for more than one year; (ii) an offense done for the purpose of commercial advantage or private financial gain or (iii) an offense in which the alien is not upon arrival immediately brought to an appropriate immigration official at a designated port of entry. 

            Commercial advantage or financial gain may be established under either the theory that, as a principal, the defendant acted for his own commercial advantage or financial gain or under the theory that he aided another individual in committing the crime for a pecuniary motive.  United States v. Lopez-Martinez, 543 F.3d 509, 515-16 (9th Cir. 2008); United States v. Munoz, 412 F.3d 1043, 1046-47 (9th Cir. 2005); United States v. Tsai, 282 F.3d 690, 697 (9th Cir. 2002).  If the theory of liability is aiding and abetting, the jury need not find that the defendant committed the offense for his own financial advantage.  It is enough that the offense was committed for the purpose of commercial advantage and financial gain of another.  Lopez-Martinez, 543 F.3d at 515-16.  If the defendant is charged with aiding and abetting instead of as a principal, modify the first element by deleting the words “the defendant’s” to reflect the offense was done “for the purpose of [commercial advantage] [private financial gain].” 

            Statutory maximum sentences are increased for offenses involving groups of aliens in excess of 10.  8 U.S.C. § 1324(c).  In such cases, a special jury finding is required. 

            See Barajas–Montiel,185 F.3d at 951-53 (holding that criminal intent is required for felony convictions under 8 U.S.C. § 1324(a)(1) and (2)(B), as distinguished from misdemeanor offense under § 1324(a)(2)(A), where Congress eliminated mens rea requirement if illegal alien is brought to United States and taken directly to INS official at designated port of entry).  This instruction may be used for a misdemeanor charge by excluding the felonies described in § 1324(a)(2)(B)(i), (ii), and (iii) in the first element and omitting the third element. 

            The bracketed language stating an additional element applies only when the charge is an attempt.  In attempt cases, “[t]o constitute a substantial step, a defendant’s ‘actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances’.”  United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)). 

            The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same). 

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.  United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010). 

            “[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.”  United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003). 

Revised May 2023 

            The defendant is charged in [Count _______ of] the indictment with being an alien who, after [removal] [deportation], reentered the United States in violation of Section 1326(a) of Title 8 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, [the defendant was [removed] [deported] from the United States] [the defendant departed the United States while an order of [removal] [deportation] was outstanding];

            Second, thereafter, the defendant knowingly and voluntarily reentered the United States without having obtained the consent of the Attorney General or the Secretary of the Department of Homeland Security, to reapply for admission into the United States; and

            Third, the defendant was an alien at the time of reentry.

            An alien is a person who is not a natural-born or naturalized citizen of the United States.

Comment

            Section 1326 provides three separate offenses for a deported alien: to enter, to attempt to enter, and to be found in the United States without permission.  United States v. Castillo-Mendez, 868 F.3d 830, 835 (9th Cir. 2017); United States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir. 2001).  Entry and being “found in” are general intent crimes; attempting reentry is a specific intent crime.  Castillo-Mendez, 868 F.3d at 835-36.  Use this instruction for “entered,” Instruction 7.7 (Alien—Deported Alien Reentering United States Without Consent—Attempt) for “attempted reentry,” and Instruction 7.8 (Alien—Deported Alien Found in United States) for “found in.”

            As to the second element of this instruction, it should be noted that although 8 U.S.C. § 1326(a) provides that the statute is violated by an alien who “enters, attempts to enter, or is at any time found in, the United States, unless . . . 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 the alien’s reapplying for admission, it is common for the charging indictment in such prosecutions to refer to the lack of consent by the Secretary of the Department of Homeland Security.

            “[T]he Attorney General’s consent to reapply must come after the most recent deportation.”  United States v. Hernandez-Quintania, 874 F.3d 1123, 1126 (9th Cir. 2017).  If there is any evidence presented that the defendant obtained such consent, the second element should be supplemented to clarify that the government must only prove that the defendant did not obtain consent since the defendant’s most recent deportation.

            An alien has not reentered the United States for purposes of the crime of reentry of deported alien “until he or she is physically present in the country and free from official restraint.”  United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1191 n.3 (9th Cir. 2000) (citing United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir. 2000)).  An alien is under official restraint if, after crossing the border, he is “‘deprived of his liberty and prevented from going at large within the United States.’”  United States v. Cruz-Escoto, 476 F.3d 1081, 1185 (9th Cir. 2007) (citations omitted).  An alien need not be in physical custody to be officially restrained.  Id. (citing United States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir. 2000)).  “‘[R]estraint may take the form of surveillance, unbeknownst to the alien.’”  Id. (quoting Pacheco-Medina, 212 F.3d at 1164).  The government has the burden of proving the defendant was free from official restraint but need not respond to a defendant’s free floating speculation that he might have been observed the whole time.  United States v. Castellanos-Garcia, 270 F.3d 773, 777 (9th Cir. 2001).

            In Almendarez-Torres v. United States,523 U.S. 224,  244 (1998), the Supreme Court held that in a prosecution for illegal re-entry after deportation in violation of 8 U.S.C. § 1326(a), the existence of a prior aggravated felony conviction need not be alleged in the indictment and presented to the jury because the conviction constitutes a sentencing enhancement pursuant to 8 U.S.C. § 1326(b)(2) and “[a] prior felony conviction is not an element of the offense described in 8 U.S.C. § 1326(a).”  United States v. Alviso, 152 F.3d 1195, 1199 (9th Cir. 1998).  The Supreme Court’s opinion in Apprendi v. New Jersey, 530 U.S. 466 (2002) expressed doubt concerning the correctness of Almendarez-Torres; however, the Ninth Circuit has stated that “until the Supreme Court expressly overrules it, Almendarez-Torres controls.”  United States v. Pacheco-Zepeda, 234 F.3d 411, 414-415 (9th Cir. 2000).

            To trigger an increase in the statutory maximum sentence under § 1326(b)(1)-(2), the aggravating fact of the removal being subsequent to the predicate conviction must be submitted to the jury and proved beyond a reasonable doubt. See United States v. Martinez, 850 F.3d 1097, 1105 (9th Cir. 2017); United States v. Salazar-Lopez, 506 F.3d 748, 751-52 (9th Cir. 2007); United States v. Covian Sandoval, 462 F.3d 1090, 1097-98 (9th Cir. 2006).  However, if the temporal sequence of events is necessarily established by the evidence and jury verdict, then the absence of a special jury finding may not constitute reversible error. Compare United States v. Calderon-Segura, 512 F.3d 1104, 1110-11 (9th Cir. 2008) (holding that, because all evidence of prior removal related only to one removal in 1999, jury necessarily found beyond reasonable doubt not only fact of prior removal but also that removal occurred subsequent to 1997 conviction), with Martinez , 850 F.3d at 1108-09 (holding that jury’s finding of fact of prior removal could not be construed as finding that removal occurred subsequent to conviction where immigration documents submitted to jury contained mistakes).

            The third element, alienage, is an element of the offense that the government must prove.  United States v. Sandoval-Gonzalez, 642 F.3d 717, 722 (9th Cir. 2011).  A defendant who contends that his or her citizenship derives from the citizenship of a parent is not raising an affirmative defense.  Id. at 721-24.  The burden remains on the government to prove the defendant is an alien.  Id.  Alienage cannot be proven either by a prior deportation order alone or a defendant’s admission of noncitizenship alone without corroborating evidence.  United States v. Gonzalez-Corn, 807 F.3d 989, 996 (9th Cir. 2015).  These two facts taken together, however, may establish alienage.  See id. at 992, 996 (providing example of instruction addressing alienage).

            A person who meets any of the qualifications set out in 8 U.S.C §1401 is a national or a citizen at birth.

            In the typical case the third element will turn on whether the defendant is a citizen, but in rare cases the issue could be whether the defendant is a national of the United States.  See 8 U.S.C. §1101(a)(22) for a definition of national of the United States.  See also Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 967-68 (9th Cir. 2003). 

Revised Apr. 2019 

            The defendant is charged in [Count _______ of]] the indictment with being an alien who, after [removal] [deportation], attempted reentry into the United States in violation of Section 1326 of Title 8 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, [the defendant was [removed] [deported] from the United States] [the defendant departed the United States while an order of [removal] [deportation] was outstanding];

            Second, the defendant had the specific intent to enter the United States free from official restraint;

            Third, the defendant was an alien at the time of the defendant’s attempted reentry into the United States;

            Fourth, the defendant had not obtained the consent of the Attorney General or the Secretary of the Department of Homeland Security to reapply for admission into the United States; and

            Fifth, the defendant did something that was a substantial step toward committing the crime.

            A “substantial step” is conduct that strongly corroborates a defendant’s intent to commit the crime.  To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.  Mere preparation is not a substantial step toward committing the crime. 

 Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. 

            An alien is a person who is not a natural-born or naturalized citizen of the United States.

Comment

            An alien has not reentered the United States for purposes of the crime of reentry of a deported alien “until he or she is physically present in the country and free from official restraint.” United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1191 n.3 (9th Cir. 2000) (en banc) (citing United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir. 2000)). 

             The crime of attempted illegal reentry is a specific intent offense. United States v. Castillo-Mendez, 868 F.3d 830, 836 (9th Cir. 2017); see also Gracidas-Ulibarry, 231 F.3d at 1190 (discussing elements of offense where defendant claimed he was asleep when he entered United States). In an attempt case, the government must prove that the alien had a specific intent to enter the country free from official restraint.  Castillo-Mendez, 868 F.3d at 836; United States v. Vazquez-Hernandez, 849 F.3d 1219, 1225 (9th Cir. 2017).  “Official restraint” means restraint by any government official, and thus an alien who enters the United States with the sole intent to go to jail lacks specific intent to enter the country free from official restraint.  United States v. Lombera-Valdovinos, 429 F.3d 927, 929-30 (9th Cir. 2005); see also United States v. Argueta-Rosales, 819 F.3d 1149, 1156 (9th Cir. 2016) (stating that if the alien’s sole “intent was to be taken into custody,” then “no rational trier of fact could conclude [he] was guilty of the specific intent crime of attempted illegal reentry” (internal quotation marks and citation omitted)).  “Official restraint” does not make substantial steps toward entry impossible, and thus an alien who was under official restraint so as to preclude a conviction for illegal reentry may still be guilty of attempted reentry.  United States v. Leos-Maldonado, 302 F.3d 1061, 1063 (9th Cir. 2002). 

The government “need not prove that entry free from official restraint was the defendant’s sole intent,” only “a specific intent.” Argueta-Rosales, 819 F.3d at 1157; accord United States v. Cabrera, 83 F.4th 729, 737 (9th Cir. 2023) (upholding instruction that included “language indicating that the government need not prove a defendant’s intent to evade authorities was his sole intent in entering the United States”). If there is conflicting evidence as to whether the defendant possessed any specific intent to remain free of restraint, the jury should decide the issue. See Argueta-Rosales, 819 F.3d at 1156.

             For an attempt to commit the crime, jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).  The attempt coupled with the specification of the time and place of the attempted illegal reentry may provide the requisite overt act that constitutes a substantial step toward completing the offense.  United States v. Resendiz-Ponce, 549 U.S. 102, 107-08 (2007).

              Regarding sentencing, see the Comment to 7.6 (Alien—Deported Alien Reentering United States Without Consent) for a discussion of Almendarez-Torres v. United States, 523 U.S. 224 (1998).

              The “strongly corroborates” language comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).

 Revised Dec 2023

            The defendant is charged in [Count _______ of] the indictment with being an alien who, after [removal] [deportation], was found in the United States in violation of Section 1326(a) of Title 8 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, [the defendant was [removed] [deported] from the United States] [the defendant departed the United States while an order of [removal] [deportation] was outstanding];

Second, thereafter, the defendant voluntarily entered the United States;

            Third, [at the time of entry the defendant knew [he] [she] was entering the United States] [after entering the United States the defendant knew that [he] [she] was in the United States and knowingly remained];

            Fourth, the defendant was found in the United States without having obtained the consent of the Attorney General or the Secretary of the Department of Homeland Security to reapply for admission into the United States;

            Fifth, the defendant was an alien at the time of the defendant’s entry into the United States; and

            Sixth, the defendant was free from official restraint at the time [he][she] entered the United States.

            An alien is a person who is not a natural-born or naturalized citizen of the United States. 

Comment

            “Found in” the United States is a general intent crime.  United States v. Castillo-Mendez, 868 F.3d 830, 836 (9th Cir. 2017).  In United States v. Salazar-Gonzalez,458 F.3d 851, 856 (9th Cir. 2006), overruled on other grounds by United States v. Orozco-Acosta, 607 F.3d 1156 (9th Cir. 2010), the court clarified “an area of confusion in our § 1326 jurisprudence” by holding “that for a defendant to be convicted of a § 1326 ‘found in’ offense, the government must prove beyond a reasonable doubt that he entered voluntarily and had knowledge that he was committing the underlying act that made his conduct illegal—entering or remaining in the United States.” 

            In United States v. Martinez, 850 F.3d 1097 (9th Cir. 2017), the court reiterated that the jury is required to make a finding regarding the defendant’s removal date and that the government is required to prove that date beyond a reasonable doubt.  See id. at 1099, 1105.  This finding may be made by a special jury verdict form.  

            Mere physical presence is inadequate to support a conviction for being found in the United States.  See United States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir. 2000) (holding proof that border patrol encountered the defendant at the port of entry does not constitute adequate proof that the defendant was found in the United States free from official restraint).  “The burden is on the government to establish lack of official restraint.”  United States v. Bello–Bahena, 411 F.3d 1083, 1087 (9th Cir. 2005); see also Castillo-Mendez, 868 F.3d at 838 (“In ‘found in’ cases, on the other hand, the government must prove that at the time a defendant entered, he was free from official restraint as a matter of fact, irrespective of his knowledge or intent to avoid that restraint.”).  An alien is under official restraint if, after crossing the border, he is “‘deprived of his liberty and prevented from going at large within the United States.’”  United States v. Cruz-Escoto, 476 F.3d 1081, 1185 (9th Cir. 2007) (citations omitted).

            Whether an alien crosses the border at a designated point of entry or elsewhere weighs on the question of official restraint.  Cruz-Escoto, 476 F.3d at 1085.  When an alien crosses the border at a designated point of entry and proceeds directly in the manner designated by the government where he is stopped when he presents himself to the authorities, he has not yet entered and cannot be found in the United States.  Id. (citing United States v. Zavala-Mendez, 411 F.3d 1116, 1121 (9th Cir. 2005)).  Aliens who sneak across the border are under official restraint only if they are under constant governmental observation from the moment they set foot in this country until the moment of their arrest.  Id. (citing United States v. Castellanos-Garcia, 270 F.3d 773, 775 (9th Cir. 2001)).

            An alien is under official restraint if he is “‘deprived of his liberty and prevented from going at large within the United States.’”  Cruz-Escoto, 476 F.3d at 1085 (citations omitted).  An alien need not be in physical custody to be officially restrained.  Id. (citing Ruiz-Lopez, 234 F.3d at 448).  “‘[R]estraint may take the form of surveillance, unbeknownst to the alien.’”  Id. (quoting United States v. Pacheco-Medina, 212 F.3d 1162, 1164 (9th Cir. 2000)).  The government has the burden of proving the defendant was free from official restraint but need not respond to a defendant’s free floating speculation that he might have been observed the whole time.  Castellanos-Garcia, 270 F.3d at 777.  When there is some evidentiary support for it, the court might consider instructing the jury on the defense of constant official restraint as follows:

THEORY OF DEFENSE

In this case when deciding whether the defendant is guilty or not guilty of the crime of being a deported alien found in the United States, the government must prove beyond a reasonable doubt that the defendant was not under constant official restraint when [he] [she] entered the United States.  If the defendant was under constant official restraint, [he] [she] cannot be found guilty of being found in the United States.

“Under constant official restraint” means the defendant was under constant, continuous observation by a United States officer, either directly or by camera surveillance, from the moment [he] [she] first crossed the border and entered the territory of the United States up until the time of [his] [her] apprehension.  If the individual was first observed after [he] [she] had physically crossed the border of the United States, then [he] [she] is not under constant official restraint.

            Regarding sentencing, see Comment to Instruction 7.6 (Alien—Deported Alien Reentering United States Without Consent) for a discussion of Almendarez-Torres v. United States, 523 U.S. 224 (1998).    

Revised Sept. 2019