Circuit Overturns Conviction of Immigrant

, New York Law Journal

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The Rainbow Bridge connects Niagara Falls, Ontario, and Niagara Falls, New York. The Canadian side of the bridge is at bottom of this photograph.
The Rainbow Bridge connects Niagara Falls, Ontario, and Niagara Falls, New York. The Canadian side of the bridge is at bottom of this photograph.

A deportation-eligible immigrant who was returned to the United States in handcuffs by Canadian border patrol officers had his conviction for being in the United States without legal permission overturned on Tuesday.

The U.S. Court of Appeals for the Second Circuit held that Walter Vasquez Macias could not be convicted of being "found in" the United States illegally because he was forcibly returned by Canadian authorities after attempting to cross into Canada and start a new life.

The reason, Judges Rosemary Pooler (See Profile), Reena Raggi (See Profile) and Richard Wesley (See Profile) said, was that Vasquez's presence in the United States was involuntary, so "allowing his conviction to stand would constitute manifest injustice."

The case of United States v. Vasquez Macias, 12-3908-cr, required the Second Circuit to define the limits of 8 U.S.C. §1326, stating that any "alien who…has been…deported, or removed…and thereafter…enters, attempts to enter, or is at any time found in, the United States" is subject to a fine or imprisonment.

Vasquez, a native of Honduras, had what Wesley called a "checkered immigration history" that began when he was detained in California in 1990, left voluntarily, illegally reentered the country and was deported in 2000 after selling drugs to undercover police officers.

Vasquez reentered the country illegally in 2001 and set up an antiques business, but in 2012, he decided to leave, so he traveled from Texas to Niagara Falls, where he walked across the Rainbow Bridge on Jan. 12, 2012.

When Vasquez reached the Canadian side of the bridge, an agent with the Canada Border Services Agency (CBSA) refused him entry and gave him an "Allowed to Leave" document.

The agent then handcuffed Vasquez and handed him over to U.S. Customs and Border Protection officials. He was indicted for being "voluntarily present and found in the United States."

Vasquez was convicted at trial by a jury before Western District Judge Richard Arcara (See Profile) in 2012 and sentenced to four years in prison.

In the Second Circuit opinion issued Tuesday, Wesley said both sides agreed on the facts, "but [left] it to this Court to determine the meaning of 'found in' and whether Vasquez was continuously 'in the United States' within the meaning of 8 U.S.C. §1326."

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  • alm

    Great article!

  • alm

    Great article!

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