US v. Rizo-Rizo, No. 20-50172 (10-29-21)(Bennett w/Paez & Callahan). For the misdemeanor offense of attempted illegal entry, 1325(a)(1), the 9th holds that knowledge of alienate is not an element of the offense. This is a circuit issue of first impression. The specific intent of “attempted entry” goes to whether the person specifically intended to enter the United States. See US v. Smith-Baltiher, 424 F.3D 913 (9th Cir. 2005). The 9th also distinguishes Rehaif, which construed the scope of “knowingly” as to the elements.

The 9th here takes the approach to regard the offense as a regulatory one, and no presumption of scienter applies. Supporting this too is that Congress had required specific intent in other provisions of 1325; and 1326 has been held to be regulatory.

A valiant appeal by Doug Keller and Michael Marks of the Federal Defenders of San Diego.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/29/20-50172.pdf