9.8 ALIEN—DEPORTED ALIEN FOUND IN UNITED STATES
(8 U.S.C. § 1326(a))
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. 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, 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; and
Fifth, the defendant was an alien at the time of the defendant’s entry into the United States.
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).
In United States v. Lopez, 747 F.3d 1141 (9th Cir.2014), the court cited this instruction with approval and held that if the defendant enters the United States after being denied admission, excluded, deported or removed, then it is not necessary for the government to prove the existence of an order of deportation, removal or exclusion. "[T]he order of deportation, removal, or exclusion becomes a necessary element that the government must prove beyond a reasonable doubt [only] if the alien returns after he ‘has departed’ on his own." Id. at 1145-46 (quoting 8 U.S.C. § 1326(a)(1)).
In United States v. Salazar-Gonzalez,458 F.3d 851, 856 (9th Cir.2006), overruled on other grounds, 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."
The legal definition of reentry is being physically present in the United States and being free from official restraint. United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1191 n.3 (9th Cir.2000). 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) (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).
Whether an alien crosses the border at a designated point of entry or elsewhere weighs on the question of official restraint. United States v. Cruz-Escoto, 476 F.3d 1081, 1085 (9th Cir.2007). 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)).