US v. Melgar-Diaz, No. 20-50010 (6-29-21)(Bress w/Bybee & Cardone). Is a 1325(a)(1) conviction unconstitutional because (1) it violates the non-delegation doctrine; and (2) is unconstitutionally vague. Affirming the conviction, the 9th rejects both challenges. The non-delegation doctrine challenge attacks Congress’s giving the power to Immigration to determine “the time and place” of entry without direction or standard. The 9th finds the challenge misperceiving the doctrine: Congress made it a crime to enter without checking in – the time and place is properly a ministerial function given to the Executive. The designation is proper, just as an example of requiring crossing in crosswalks, and leaving it to the government to designate crosswalks. The scheme itself supports such discretion. The 9th also dismisses the challenge for vagueness—both facially and as applied. There is sufficient notice.

Doug Keller (CJA) and Kara Hartzler, Fed Def of San Diego, righteously raised interesting constitutional challenges.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/29/20-50010.pdf