Tuesday, November 10, 2009

U.S. v. Ambriz-Ambriz, No. 08-30431 (11-10-09). Defendant tried to go to Canada for a medical procedure. Unfortunately for him, he was not allowed in, and when he tried to return to the United States, he was discovered to have been a previously-removed alien. He was charged under 1326. At trial, he argued that he should get an instruction for "official restraint" because he was always under surveillance. The district court denied the request, reasoning that the defendant had never left the country. On appeal, the 9th agreed. The panel (Callahan joined by Rawlison and Cudahy) discusses the "official restraint" doctrine, which applied to those individuals who fly into the United States, land, and precede to customs; and, more frequently, those aliens who seek to re-enter but are under constant observation by the government. The doctrine is inapplicable here, even if the defendant had been in Canada for a short time, because travel started in the United States, and the defendant was not legally in Canada and was not trying to re-enter here from there. The emphasis is on his legal status as well as his physical status. The 9th also affirmed the denial of an instruction defining "found in."


Post a Comment

<< Home