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9.7 Alien—Deported Alien Reentering United States Without Consent--Attempt

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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(a) of Title 8 of the United States Code. In order 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 conscious desire to reenter the United States without consent;

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.

Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.

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


See Comment to Instruction 9.6 (Alien—Deported Alien Reentering United States Without Consent).

The crime of attempted illegal reentry is a specific intent offense. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1190 (9th Cir.2000) (en banc) (discussing elements of the offense where defendant claimed he was asleep when he entered the United States). 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).

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).