United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-2704

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United States of America, *

*

 Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Daniel Vallejos-Batres, *

also known as Danilo Vallejos-Batres, * [UNPUBLISHED]

also known as Danilo Vidal *

Vallejos Batres, *

*

 Appellant. *

___________

Submitted: February 12, 2003

Filed: February 26, 2003

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Before WOLLMAN, HEANEY and MELLOY, Circuit Judges.

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PER CURIAM.

Daniel Vallejos-Batres appeals from his conviction for illegal reentry to the

United States following deportation. He asserts the district court erred when it denied

him the opportunity to present a defense through jury instructions, evidence, and

argument that the government was required to prove that he knowingly and

intentionally remained in the United States without permission. Vallejos-Batres is

from El Salvador, and he believed he was allowed to enter and remain in the United
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States under temporary protected status, which was extended to Salvadorans

following devastating earthquakes in 2001. On the basis of United States v.

Gonzalez-Chavez, 122 F.3d 15 (8th Cir. 1997), we affirm.

The statute under which appellant was prosecuted and convicted, 8 U.S.C. §

1326, provides that an alien who:

(1) has been denied admission, excluded, deported, or removed or has

departed the United States while an order for exclusion, deportation, or

removal is outstanding, and thereafter (2) enters, attempts to enter, or is

at any time found in, the United States, unless (A) prior to his

reembarkation at a place outside the United States or his application for

admission from foreign contiguous territory, the Attorney General has

expressly consented to such alien’s reapplying for admission; or (B)

with respect to an alien previously denied admission and removed,

unless such alien shall establish that he was not required to obtain such

advance consent under this chapter or any prior Act, shall be fined under

Title 18, or imprisoned not more than 2 years, or both.

Appellant thought he had permission to be in the United States. He asserts his belief

constitutes an affirmative defense to illegal reentry, which should have been

presented to the jury. He argues that 8 U.S.C. § 1326 is a specific intent crime, which

requires the government to prove that the defendant not only intended to be in the

United States, but also intended to violate the law by returning to this country,

knowing that he lacked the legally required permission.

This circuit has held that 8 U.S.C. § 1326 is not a specific intent crime. See

United States v. Gonzalez-Chavez, 122 F.3d 15 (8th Cir. 1997). A panel of this court

explained in that case that:

We agree with those courts that have held that specific intent is not an

element of the offense in § 1326 prosecutions. Section 1326 is silent on
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the issue of criminal intent, and while statutory silence alone does not

necessarily dictate that intent is not an element of the stated crime,

nothing in the legislative history of §1326 supports inferring an element

of specific intent. To the contrary, the use of express language

concerning specific intent in other provisions of the Immigration and

Nationality Act suggests that Congress intended to establish a mala

prohibita offense “to assist in the control of unlawful immigration by

aliens.”

Id. at 17 (citations omitted). We therefore affirm the conviction. See 8th Cir. R.

47B.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.