Wednesday, November 30, 2005

The 9th circus does it again

ABP tossed me to the ruling that proves just how pathetic the 9th circus is

We consider the question of whether it is possible to convict
a previously deported alien for attempted illegal reentry
into the United States under 8 U.S.C. § 1326 when he crosses
the border with the intent only to be imprisoned. We conclude
that it is not, because attempted illegal reentry is a specific
intent crime that requires proof of intent to enter the country
free from official restraint. The government, operating under
a misconception about the meaning of official restraint, failed
to introduce evidence to support a finding of such intent, so
we must reverse.

Ok but they go into the law

[1] A previously deported alien who “enters, attempts to
enter, or is at any time found in, the United States” without
the express consent of the Attorney General has violated 8
U.S.C. § 1326(a)(2). However, for the purposes of § 1326,
“enter” has a narrower meaning than its colloquial usage. An
alien has not entered the United States under § 1326 unless he
does so “free from official restraint.” United States v.
Gracidas-Ulibarry, 231 F.3d 1188, 1191 n.3 (9th Cir. 2000)
(en banc) (citing United States v. Pacheco-Medina, 212 F.3d
1162, 1166 (9th Cir. 2000)); see also United States v.
Hernandez-Herrera, 273 F.3d 1213, 1218 (9th Cir. 2001)
(“Since 1908, federal courts have recognized that ‘entering’
the United States requires more than physical presence within
the country. . . . To ‘enter,’ an alien must cross the United
States border free from official restraint.”

So in other words are they saying that if the United States border has nothing to stop people that makes them free of restraint?

no then they would have ruled the other way.

Attempted illegal reentry requires proof of specific
intent, Gracidas-Ulibarry, 231 F.3d at 1190, more particularly
the specific intent “to reenter without consent.” United
States v. Leos-Maldonado, 302 F.3d 1061, 1063 (9th Cir.
2002). Because an alien has not “reentered” unless he has
done so free from official restraint, the requirement of specific
intent for this attempt crime means that to be found guilty, a
defendant must have the specific intent to reenter “free from
official restraint.”

Now here they are saying if you illegally enter for the purpose of going to jail its not illegal?

which is it?

lets hope the USSC cleans this one up to

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