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United States v. Gaspar-Miguel

United States District Court, D. New Mexico

January 25, 2019




         This matter is before the Court on Defendant Petrona Gaspar-Miguel's appeal from the judgment and conviction entered by Magistrate Judge Gregory B. Wormuth on August 27, 2018. (Doc. 35.) Defendant was found guilty of illegal entry without inspection in violation of 8 U.S.C. § 1325(a). (Doc. 37 at 119.) She appeals her conviction on the ground that the Magistrate Judge incorrectly applied the law regarding the definition of “entry” and the doctrine of official restraint, and under a correct application of the law the evidence does not support a finding beyond a reasonable doubt that she entered the United States. The issue of whether continuous government surveillance constitutes official restraint in criminal immigration proceedings has not been squarely addressed by the Tenth Circuit. It has also recently become a pivotal issue in many criminal entry and reentry cases in this District.

         Having reviewed the parties' arguments, the history of the doctrine, and all relevant case law, the Court finds that continuous surveillance by law enforcement during the crossing of an international border does not constitute constructive official restraint. Thus, the judgment of the United States Magistrate Judge finding Defendant guilty of entry without inspection in violation of 8 U.S.C. § 1325(a) is affirmed.

         I. Background [1]

         A. Facts Preceding the Charge

         Defendant Petrona Gaspar-Miguel is a citizen of Guatemala. (Id. at 96.) On June 17, 2018, Defendant was arrested after crossing the international boundary line between the United States and Mexico. (Id. at 44-45.) That afternoon, Border Patrol Agent Stephen Salcido was on “line watch duty” in Sunland Park, New Mexico, monitoring the area for illegal entries. (Id. at 14.) At approximately 12:20 p.m., Agent Salcido was watching the border area through binoculars when he “observed some movement moving northbound from the international boundary line.” (Id. at 15.) Agent Salcido referred to the area he was observing as “the end of the fence.” (Id.) The fence runs along the international border in Sunland Park but ends near Mount Cristo Rey because the terrain in that area prevents the fence from continuing up the mountain. (Id.) Agent Salcido “observed the tail-end of some movement coming across the end of the fence.” (Id. at 19.) He then “relayed that to [his] partners in the field and they responded and encountered some individuals.” (Id.) When asked to clarify, Agent Salcido reiterated that he saw the movement “coming around the end of the fence there and moving in a northbound direction.” (Id.) On direct examination, when asked if “it [would] be fair to say that [he] maintained constant surveillance on the individuals[, ]” Agent Salcido responded, “yes.” (Id. at 21.)

         After Agent Salcido alerted other agents by radio that several individuals had crossed the international border, Border Patrol Agent Roberto Tellez responded to the location and apprehended three individuals, including Defendant and her son. (Id. at 29.) Through his binoculars, Agent Salcido observed Agent Tellez drive up to the individuals. (Id. at 25.) A “[c]ouple of minutes” elapsed between Agent Tellez receiving the radio message and reaching the individuals who were, by that time, in the United States and approximately 50-75 yards north of the border. (Id. at 30.) The individuals did not run from Agent Tellez or attempt to escape. (Id. at 24-25.) Each of the three individuals told Agent Tellez that they were citizens of Guatemala, did not have documents to stay in the United States legally, and had just crossed the border illegally. (Id. at 31-32.) Border Patrol Agent Victor Ramirez then responded to the scene in a transport van and transported the individuals to the Santa Teresa Border Patrol Station. (Id. at 44-47.)

         At the station, Agent Ramirez began processing Defendant, which included collecting and recording her biographical information. (Id. at 47-48.) Agent Ramirez determined that she had never been deported nor did she have any other immigration or criminal history in the United States. (Id. at 77-79.) The next day, Border Patrol Agent Robert De Anda finished processing Defendant at the station. (Id. at 60-64.) Based on their conversation, Agent De Anda “stamped ‘credible fear claim' on her paperwork.” (Id. at 80.) This indicated that, following the conclusion of any criminal proceedings against Defendant, she would be interviewed by an asylum officer regarding her claim of credible fear in Guatemala. (Id. at 82-83.)

         Defendant testified that she feared for her life in Guatemala because she had a child with a married man and the man's wife threatened her and her son. (Id. at 91.) Defendant also testified that the man's wife had paid someone to sexually assault her. (Id.) Defendant paid an individual to guide her and her son to the U.S.-Mexico border. (Id. at 96.) “My goal was to enter the United States and ask for help . . . . [S]ince I didn't know where one enters, that's why I entered like that during the day, so that they could find me.” (Id. at 92-93.) Defendant testified that she did not try to elude agents at the border: “I didn't try to hide. I crossed in broad the [sic] daylight and I did not hide and I did not run. I thought, thank God that they're here, they found me.” (Id. At 93.) Defendant's brother is a United States citizen who lives in Kentucky, and she stated that if she were permitted to remain in the United States she would like to live and work in Kentucky. (Id. at 95.)

         B. Bench Trial

         Defendant was charged with improper entry without inspection, in violation of 8 U.S.C. § 1325(a), for “enter[ing] and attempt[ing] to enter the United States at a time and place other than as designated by Immigration Officers.” (Doc. 1 at 1.) The Honorable Gregory B. Wormuth, United States Magistrate Judge, held a bench trial and motions hearing in the matter on August 27, 2018. (See Doc. 37.) After the parties elicited the facts surrounding Defendant's border crossing and subsequent apprehension as described above, Defendant moved for a directed verdict based on the official restraint doctrine. (Id. at 98-99.)

         Defendant asserted that because the agents had kept her under constant surveillance while she crossed the border, she was under constructive official restraint the entire time and thus had not “entered” the United States. (Id.) “[T]he Government [] failed to prove Ms. Gaspar was guilty of entry into the United States without inspection and the proper charge was attempted entry without inspection.” (Doc. 40 at 6; see also Doc. 37 at 98-99.) Defendant next argued that attempted improper entry is a specific intent crime, and thus the Government had not met its evidentiary burden for that charge either because the evidence showed that she had the specific intent to seek asylum, not the specific intent to enter the United States illegally and evade law enforcement.[2] (Docs. 37 at 98-99; 40 at 6.)

         The Government disputed the application of the official restraint doctrine in the Tenth Circuit and argued that the evidence proved beyond a reasonable doubt that Defendant met the three elements necessary for a conviction under 8 U.S.C. § 1325(a): (1) she was a citizen of Guatemala without authorization to enter the United States; (2) she entered or attempted to enter the United States; and (3) she entered the United States at a time or place other than as designated by immigration officers. (Doc. 37 at 111-12.) Though the Government asserted that it does not believe the official restraint doctrine applies in this District to define “entry” in criminal immigration cases, it argued in the alternative that, even if the Court accepted the official restraint doctrine and concept of surveillance as official restraint and proceeded on a theory of attempted entry, the evidence proves that Defendant had the specific intent to evade law enforcement and travel to Kentucky to reunite with her brother. (Id. at 100-03.)

         Both parties noted that, the week before, United States Magistrate Judge Stephen R. Vidmar acquitted a defendant charged with entry without inspection on the theory that the defendant had been under Border Patrol surveillance the entire time he crossed the international border. (Id. at 100-01); see also United States v. Akana-By Komlan Adjeodar, 2:18-po-02620-CG, Tr. Bench Trial at 6:3-12:19 (Aug. 24, 2018). In that case, Judge Vidmar opined that the Tenth Circuit would likely adopt the doctrine of official restraint. Adjeodar, 2:18-po-02620-CG, Tr. Bench Trial at 6:3-9:20. At the close of Defendant's bench trial, however, Judge Wormuth rejected the idea of surveillance as official restraint, explaining that he was “not persuaded in any fashion that surveillance, particularly surveillance unknown to an individual, can constitute official restraint within any meaning of that word.” (Doc. 37 at 117.) He held that, as a result, the undisputed evidence proved beyond a reasonable doubt that Defendant's actions met all three required elements of the crime of entry without inspection in violation of 8 U.S.C. § 1325(a). (Id. at 118-19.) Defendant was convicted and sentenced to time served. (Id. at 120.)

         C. The Appeal

         Defendant filed a timely notice of appeal on September 6, 2018. (Doc. 35 at 1.) Defendant argues that, if the official restraint doctrine is properly applied, she is not guilty of violating 8 U.S.C. § 1325(a), which makes it a crime to “enter[] or attempt[] to enter the United States at any time or place other than as designated by immigration officers.” She asserts that her appeal should be granted for two reasons:

First, she did not “enter” the United States within the meaning of § 1325(a) because she was under official restraint from the time of her entry until her arrest. Second, she did not “attempt” to enter the United States because she did not have the specific intent to enter the United States free of official restraint.

(Doc. 40 at 10.) As previously stated, only the first theory-that Defendant did not “enter” the United States-is properly before the Court on appeal.

         Defendant argues that “[f]or immigration purposes, ‘entry' is a term of art requiring not only physical presence in the United States but also freedom from official restraint.” (Id. At 10-11 (citing United States v. Argueta-Rosales, 819 F.3d 1149, 1158 (9th Cir. 2016)).) Citing cases from nine circuits that have defined “entry” in the immigration context, she asserts that “all the courts that have decided what conduct comprises an ‘entry' have concluded that physical presence in the country is required, as well as freedom from official restraint.” (See Id. at 11 (collecting cases).) Defendant also argues that “[t]he law is well-settled that surveillance, whether known or unknown to the defendant, is sufficient to constitute official restraint that prevents an ‘entry' within the meaning of the immigration laws.” (Id. at 12.) For this proposition, Defendant cites various civil immigration decisions (see Id. (collecting cases)), as well as United States v. Gonzalez-Torres, 309 F.3d 594 (9th Cir. 2002), a case affirming that in the Ninth Circuit, surveillance constitutes constructive official restraint in criminal immigration proceedings. (See Doc. 40 at 12.) She then argues that, while the Tenth Circuit has not explicitly adopted the concept of surveillance as official restraint, the Tenth Circuit will likely do so based on its reasoning in the unpublished decision United States v. Encinas-Rodriguez and Judge Vidmar's conclusions in United States v. Adjeodar. (See Id. (citing Encinas-Rodriguez, No. 99-2064, 1999 WL 547972, at *1 (D.N.M. July 28, 1999); Adjeodar, 2:18-po-02620-CG).)

         The Government argues in response that the Tenth Circuit has declined to adopt the doctrine of official restraint and associated concept of surveillance as constructive official restraint, and should not do so now. (Doc. 44 at 7.) The Government makes five distinct arguments against application of the official restraint doctrine in this case. (See id.) First, it argues that the concept of official restraint as an element of “entry” was a civil immigration concept that should never have been applied in the criminal context. (Id. at 7-13.) Second, the Court should not adopt the doctrine of official restraint because “Congress expressly excised ‘entry' from the [Immigration and Nationality Act] to destroy the entry fiction[.]” (Id. at 13-16) Third, the Ninth Circuit's continued interpretation of the official restraint doctrine in the criminal context to include continuous surveillance is radical and cuts against “Congress's express intent.” (Id. at 16-19.)

         Fourth, the Government argues that the Tenth Circuit and federal courts in the District of New Mexico have “declined to apply” the doctrine of official restraint and constructive surveillance in criminal entry and reentry cases. (See Id. at 19-21 (citing Encinas-Rodriguez, 1999 WL 547972, at *1; United States v. Franco-Lopez, 687 F.3d 1222 (10th Cir. 2012); United States v. Dominguez-Lopez, No. CR 07-2438-MCA, 2008 WL 11451442, at *1 (D.N.M. May 14, 2008)).) Finally, the Government argues that adopting the doctrine of official restraint through surveillance in the criminal immigration context can and will produce absurd results, from discouraging “vigilant border surveillance” to overburdening the Tenth Circuit with “a never-ending current of cases asking precisely which types of surveillance qualify as restraint.” (Id. at 21-22.).

         This appeal requires the Court to answer two questions: (1) does the definition of “entry” for purposes of 8 U.S.C. § 1325(a) require freedom from official restraint? and (2) if so, does continuous surveillance by law ...

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