Walter Yovany Vasquez Macias  (“Vasquez”) is a citizen of Honduras. He has a long and convoluted immigration history in the United States. Sometimes during or before 1990 he was detained in California for being in the country illegally. He voluntarily left the country only to later reenter, again illegally. In the late 1990s, Vasquez sold drugs to undercover narcotics agents on two occasions. This led to a criminal conviction and deportation in 2000. Not deterred by the deportation, Vasquez once again illegally reentered the country sometime in 2001 after which he remained under the radar of customs and law enforcement officials. He went on to open an antique business in Texas.


For reasons unknown, Vasquez in late 2011 or early 2012 decided to get out of the antique business and leave the country for Canada. What is known is that on January 10, 2012 Vasquez, accompanied by a friend, walked across the Rainbow Bridge in Niagara Falls, Ontario. He was observed by Canada Border Services Agency (“CBSA”) walking in the car lanes toward Canada. CBSA officials detained him, escorted him to an inspection facility where he could not produce a passport or visa to enter Canada; and the reasons he gave to entering the country were less than plausible. CBSA officials denied him entry into the country at which time they provided him with an “Allowed to Leave” document which is customarily generated when someone from the U.S. is denied entry into Canada. For some unexplained reason, CBSA officials then placed Vasquez in handcuffs, forcibly returned him to the U.S., and turned him over to U.S. Customs and Border Protection (“CBP”) officials.


Vasquez was promptly indicted by a Federal grand jury for being “voluntarily present and found in the United States” in violation of 8 U.S.C. § 1326. Subsection (a) of this statute provides 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 … shall be fined under Title 18, or imprisoned not more than 2 years, or both.” Vasquez was convicted of this violation on May 11, 2012.


He appealed his conviction to the Second Circuit Court of Appeals. The issue before the appeals court was to determine the meaning of “found in” and whether Vasquez was continuously “in the United States” within the meaning of § 1326. On January 14, 2014, the court held that “because Vasquez was not in the United States when he was ‘found’ and, that when ‘found in’ the United States, was here involuntarily, Vasquez’s conviction was plainly erroneous and it would constitute manifest injustice to allow it to stand.”


There are three offenses under § 1326(a): when a previously deported alien 1) “enters,” or 2) “attempts to enter,” or 3) “is at any time found in” the United States. The elements governing entry are uncomplicated because illegal entry occurs as soon as the entry or attempted entry is made. But, as the Second Circuit and other circuits have observed, the offense of being “found in” the country is more complex because “being ‘found in’ the United States … depends not only on the conduct of the alien but also on acts and knowledge of the federal authorities.” In effect, a “found in” offense is not complete until the authorities both discover the illegal alien’s presence in the U.S., and know, with the exercise of due diligence, that his presence is illegal.


Based on this reasoning, the Second Circuit rebuffed the Government’s argument in the Vasquez case that “found in” in the United States is synonymous with being “present in the United States.” The appeals court pointed that Vasquez was not in the United States “while he was on Canadian soil seeking admission into Canada, … [and] he was not “found in’ the United States until the CBSA brought him across the border in restraints at which time the U.S. CBP ‘discovered’ him.” The court added that “prior to this ‘discovery,’ Vasquez physically crossed the border from the United States into Canada; at that point, he had neither a legal nor a physical presence in the United States. If found at this point, Vasquez was not in the United States’” under the provisions of § 1326.


It is indisputable that Vasquez left the United States and was on Canadian soil when detained by CBSA officials. The Second Circuit agreed, finding:


“The possibility that Vasquez was outside the United States once he exited our borders finds support in his treatment by customs officials at the border. A U.S. CBP official testified that Vasquez was treated, at least in some respects, as though he had never left the United States, but a CBSA agent testified that Vasquez made it far enough that he could not have turned around and returned to the U.S. side of the Rainbow Bridge. Vasquez was transported, in custody, under a status known as ‘immigration examination.’ On his return, United States officials did not permit Vasquez to leave; they took his fingerprints and ran them through national databases, questioned him in secondary inspection, forced him to fill out customs paperwork, and ultimately arrested him.”


The Second Circuit also rejected the Government’s notion that because Vasquez was treated in the customary manner of immigrants seeking to enter this country, his conviction could be upheld under the doctrine of “official restraint.” This doctrine requires both “the physical presence in the country as well as freedom from official restraint” before an “attempted entry” becomes an “actual entry.” The appeals court said the “same principles apply to being ‘found in’ the United States; if an alien’s presence here (after she has left the country) is so attenuated that she has not yet ‘entered,’ then it is insufficient to support ‘found in’ liability.”


The simple fact, as the Second Circuit observed, is that while Vasquez had been in the United States illegally for almost a decade, he was not “found” in this country in January 2012. Thus, the court concluded: “When he was found – admittedly not long after his departure from the United States – Vasquez had neither a physical or legal presence in this country. When he had been ‘found’ and was ‘in[] the United States,’ Vasquez had been returned involuntarily with neither a desire to enter, nor a will to be present in, the United States. As a result, Vasquez was not ‘found in[] the United States’ within the meaning of 8 U.S.C. § 1326.”