U.S. v. Gaspar-Miguel, 947 F.3d 632, 19-2020, 2:18-PO-2441 RB-GBW (Jan. 16, 2020) (D. N.M.)
Petrona Gaspar-Miguel, a citizen of Guatemala, crossed the border on foot with a group of other migrants. A Border Patrol agent watched the group through binoculars from the time they crossed until they were apprehended. Ms. Gaspar was charged illegal entry without inspection, in violation of 8 U.S.C. § 1325(a)(1).
The matter proceeded to a bench trial before a magistrate judge. At the close of the evidence, Ms. Gaspar moved for a judgment of acquittal based on the official restraint doctrine, arguing the government had failed to prove her guilty of entry without inspection because she was under continuous surveillance and never free to roam about the United States. She further argued the proper charge was attempted entry without inspection, and she did not have the specific intent to enter illegally. The magistrate judge found Ms. Gaspar guilty on the grounds she had entered without inspection. The magistrate judge did not address the attempt argument.
The district court affirmed the conviction. Although it found that the term “entry” has a long history of requiring not only physical presence in the country, but also freedom from official restraint, it declined to hold that continuous surveillance constituted official restraint.
On appeal, the Tenth Circuit traced the origins of the official restraint doctrine and concluded that even if it assumed “entry” requires freedom from official restraint, continuous surveillance by border patrol agents alone does not constitute official restraint. Since official restraint had not been shown, the element of “entry” into the U.S. was proved, and the Tenth Circuit affirmed the conviction.
This decision creates a circuit split with numerous other circuits that have held that continuous surveillance by law enforcement officers is official restraint that prevents "entry" into the United States.
Petrona Gaspar-Miguel, a citizen of Guatemala, crossed the border on foot with a group of other migrants. A Border Patrol agent watched the group through binoculars from the time they crossed until they were apprehended. Ms. Gaspar was charged illegal entry without inspection, in violation of 8 U.S.C. § 1325(a)(1).
The matter proceeded to a bench trial before a magistrate judge. At the close of the evidence, Ms. Gaspar moved for a judgment of acquittal based on the official restraint doctrine, arguing the government had failed to prove her guilty of entry without inspection because she was under continuous surveillance and never free to roam about the United States. She further argued the proper charge was attempted entry without inspection, and she did not have the specific intent to enter illegally. The magistrate judge found Ms. Gaspar guilty on the grounds she had entered without inspection. The magistrate judge did not address the attempt argument.
The district court affirmed the conviction. Although it found that the term “entry” has a long history of requiring not only physical presence in the country, but also freedom from official restraint, it declined to hold that continuous surveillance constituted official restraint.
On appeal, the Tenth Circuit traced the origins of the official restraint doctrine and concluded that even if it assumed “entry” requires freedom from official restraint, continuous surveillance by border patrol agents alone does not constitute official restraint. Since official restraint had not been shown, the element of “entry” into the U.S. was proved, and the Tenth Circuit affirmed the conviction.
This decision creates a circuit split with numerous other circuits that have held that continuous surveillance by law enforcement officers is official restraint that prevents "entry" into the United States.
posted by Anonymous at 3:55 PM
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