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Ninth Circuit:
Hiding Wet Near Border Insufficient Proof of Illegal Entry
Majority Says Prosecution Did Not Meet Burden of Proving Alienage, Citing Other Explanations for Suspicious Circumstances Surrounding Defendant’s Detention, Drawing Dissent
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals held yesterday, in a 2-1 decision, that there was insufficient evidence to prove an attempted illegal entry into the U.S. where the defendant was found hiding with others, wearing a life vest and wet from “head to toe,” in a tunnel structure connecting an irrigation canal to a common unlawful entry point, drawing dissent by Senior Circuit Judge Andrew D. Hurwitz.
Circuit Judge Roopali H. Desai and Second Circuit Senior Judge Barrington D. Parker, sitting by designation, signed the memorandum opinion which also found that the prosecution could not rely on the defendant’s affirmative response when a border patrol agent inquired “Punjabi?” as additional evidence of his lack of U.S. citizenship, saying “Punjabi is a language or ethnicity, not a country or region.”
At issue is 8 U.S.C. §1325(a), which criminalizes entering or attempting to enter the U.S. by an alien “at any time or place other than as designated by immigration officers.”
Appealing conviction was Imran Azam who was found hiding in a culvert with four other individuals approximately nine miles west of the Calexico point of entry on July 24, 2019 by Border Patrol Agent Jacob Castillo. All five of the discovered individuals were wet and the only body of water in the area is the All-American Canal, in which recreational swimming is prohibited.
A records check on Azam revealed no evidence that the defendant applied for or received permission to enter the nation and he was charged with a violation of §1325(a)(1). Then-Magistrate Judge Andrew G. Schopler of the Southern District of California (now a judge of that court) found Azam guilty following a court trial.
District Court’s View
On appeal, District Court Judge Janis Sammartino affirmed the judgment of conviction. Sammartino acknowledged “the lack of Ninth Circuit authority holding that ‘alienage can be proven beyond a reasonable doubt based solely on the defendant’s method of entry’ ” but said that “[t]he lack of such authority, however, does not imply that such evidence can never be sufficient to establish alienage.”
Looking to the facts of the case, she wrote:
“[A] ‘rational trier of fact’ could have found Defendant’s alienage beyond a reasonable doubt….The fact that Defendant was located within several hundred yards of the border in an area where Agent Castillo often encounters people illegally entering the country is strong circumstantial evidence of Defendant’s alienage. The fact that Defendant and his cohorts were attempting to hide…tends to show that Defendant knew he was not permitted to be in the country due to his alienage. Further, that Defendant was soaking wet and wearing a life jacket indicates that Defendant was heading north from the border (as the only body of water in the vicinity was north of the border and south of Defendant’s location), and the prohibition on recreational swimming undermines any inference that Defendant was simply enjoying a swim in a remotely located irrigation canal.”
The judge added that “while Defendant’s statement of ‘Yes, Punjabi’ cannot reasonably be interpreted as an admission of alienage, it is further circumstantial evidence that Defendant hailed from some nation other than the United States.”
Majority Opinion
Desai and Parker disagreed with Sammartino’s assessment and remarked that “there was insufficient evidence to find Azam’s alienage beyond a reasonable doubt,” saying that “[w]e have never held that circumstantial evidence regarding a defendant’s apprehension, without more, proves his alienage.”
They continued:
“[W]hen the government offers the defendant’s confession and corroborating evidence, or documentation of the defendant’s alienage, we have held there is sufficient evidence to prove a defendant’s alienage….
“Here, the government did not present a confession or documentation of Azam’s alienage. Azam’s only statement to the border patrol agent was ‘Yes, Punjabi.’….Given the language barrier and Azam’s difficulty communicating in English, we do not read much meaning into that statement, let alone construe it as a confession of non-citizenship….There are also no documents proving Azam’s alienage. A border patrol agent testified that he checked certain databases and could not find any documents granting Azam permission to enter the United States. But an agent’s inability to locate documents evidencing permission to enter does not prove citizenship of another country. Proof of alienage requires something more.”
The judges continued:
“Even if the circumstances of Azam’s apprehension raise suspicion that he crossed the border unlawfully, there are plausible explanations for these circumstances, thus raising reasonable doubt about his alienage. For example, U.S. citizens do not always cross the border at a port of entry….And many American citizens do not speak English.”
Under those circumstances, they declared that “even viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found Azam’s alienage beyond a reasonable doubt based on the thin evidentiary record in this case.”
Hurwitz’s Dissent
Hurwitz said “[t]his is a close case” but opined that a rational trier of fact could conclude that there was sufficient evidence of Azam’s noncitizen status. He wrote:
“Azam was apprehended by a Border Patrol agent about 200 yards north of the border, wet from ‘head to toe,’ wearing a life jacket, and hiding with four Spanish speakers in a culvert connecting to an irrigation canal in an area where people frequently enter the country illegally. I assume arguendo that these facts alone were not sufficient to establish Azam’s alienage, an element of…8 U.S.C. § 1325(a)(1). But under our case law, they are at the very least relevant to that determination.”
The jurist continued:
“And here there was more. The first additional item was a search of federal immigration databases that showed no evidence that Azam had permission to be in the country. The second is a statement he made to the Border Patrol agent in response to questioning during a plainly legitimate…stop….The agent, having gotten no response from Azam after questioning him in Spanish, asked Azam in English where he was from. Receiving no answer, the agent then asked, ‘Punjabi?’ Azam responded, ‘Yes, Punjabi.’
He added:
“While, as the majority states, the term ‘Punjabi’ can refer to language or ethnicity, it is also commonly used to identify ‘a native or inhabitant of the Punjab region of the northwestern Indian subcontinent.’….I believe that Azam’s statement, together with the other facts of this case, was sufficient to allow a rational finder of fact to conclude that Azam was an alien.”
The case is U.S. v. Azam, 23-1933.
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