May 18, 1978

78-28 MEMORANDUM OPINION FOR THE ASSISTANT

ATTORNEY GENERAL, CRIMINAL DIVISION

Immigration and Nationality Act (8 U.S.C. § 1329)—

Eluding Inspection— Criminal Offense— Venue

This is in response to your memorandum concerning prosecutions under 8 

U.S.C. § 1325 following the recent unreported decision of the Idaho Federal 

District Court in United States v. Wissel, which by implication held that that 

provision did not create a continuing offense. Specifically, you inquire whether 

prosecutions for “ eluding inspection” under 13251 may continue to be brought 

in the district where a defendant is apprehended, as authorized by 8 U.S.C. 

§ 1329,2 or whether the Sixth Amendment1 bars such proceedings except in a 

district at or near the border where the inspection should have taken place. We 

concur in the conclusion reached in your memorandum that because of the 

Sixth Amendment requirement, § 1329 is unconstitutional since it authorizes 

prosecution in a district other than the district at or near the border where the 

inspection should have taken place. Accordingly, we recommend that § 9-73.110 

of the United States Attorneys’ Manual be amended.

'8 U .S .C . § 1325 provides:

A ny alien w ho ( I ) e n ters the U nited S tates at any tim e o r place o th er than as 

designated by im m igration o ffice rs, o r (2) eludes exam ination o r inspection by im m igration o fficers, o r (3) o b tain s entry to the U nited S tates by a w illfully false o r m isleading 

representation o r the w illful con cealm en t o f a m aterial fact, shall . . . be guilty o f a 

m isdem eanor. . . .

28 U .S .C . § 1329 provides in pertinent part:

T he district courts o f the U nited S tates shall have ju risd ictio n o f all c au ses, civil and 

c rim in al, arising under any o f the p ro v isio n s o f this subchapter. It shall be the duty o f the 

U nited States attorney o f the p ro p e r district to prosecute every such suit w hen brought by 

the U nited S tates. N otw ithstanding any o th e r law , such prosecutions or suits m ay be 

instituted at any place in the U nited S tates at w hich the violation m ay o c cu r o r at w hich 

the person c harged w ith a violation under section 1325 o r 1326 o f this title m ay be 

apprehended. . . .

’T he Sixth A m e n d m e n t's guarantee that “ In all crim inal prosecutions, the accused shall enjoy 

the right to a speedy and public trial, by an im partial ju ry o f the State and district w herein the crim e 

shall have been co m m itted . . . " co m p lem en ts that found in A rticle III. § 2, cl. 3, that “ T he T rial o f 

all C rim es. . . shall be by Jury; and such T rial shall be held in the State w here the said C rim es shall 

have been c o m m itte d ."

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Absent a continuing offense rationale, you have indicated that an “ eluding 

inspection” violation cannot be deemed to have been committed in the district 

in which the defendant is found. It follows, then, as a constitutional matter, that 

all prosecutions charging violations of § 1325 must be brought in the district 

where the offense was committed, i.e., where the alien entered the country or 

where the inspection station to which he was to have reported is located.

There is no way in which the clear language of § 1329 can be reconciled 

with this conclusion; it appears instead that its specification of the venue of 

§ 1325 prosecutions as “ at any place . . . at which the person charged with 

[such] a violation may be apprehended” is merely an anomaly produced by 

inartful drafting. Section 1329 was originally enacted in 1917,4 before 

illegal entry had been criminalized rather than simply made a ground for 

deportation. The language of this early version5 differed in minor but significant ways from the current version adopted as part of the overall 1952 revision of the immigration laws. While the earlier language appeared to apply 

to both criminal and civil proceedings and might be read to provide for proceedings where the person charged “ may be found” only in the latter case,6 

the 1952 revision subtly but significantly changed this focus by authorizing 

prosecutions only under certain enumerated criminal provisions (namely, 

§§ 1325 and 1326) in districts where the violator is “ apprehended,” not 

simply where he might be found, i.e., reside. This modification makes good 

sense in relation to § 1326, which was simultaneously revised to render 

criminal the act of being “ found” in the United States where an alien had once 

been arrested and deported or excluded and deported.7 Thus, under the revised 

version of § 1326, if an alien who had previously been deported was found in a 

particular locality he could properly be prosecuted in that locality because in 

that context his presence there constituted a continuing offense that had begun

4See A ct o f February 5, 1917, ch. 29, § 25; 39 Stat. 893.

5T his version read as follow s:

That the district courts o f the U nited States are hereby invested w ith full ju risd ictio n o f 

all causes, civil and crim in al, arising under any o f the provisions o f this A ct. T hat it shall 

be the duty o f the U nited States district attorney o f the proper district to prosecute every 

such suit w hen brought by the U nited States under this A ct. Such prosecutions or suits 

m ay be instituted in any place in the U nited States at w hich the violation m ay occur o r at 

w hich the person charged w ith such violation m ay be found. . . .

6T he R eport o f the Senate Judiciary C om m ittee on the Im m igration and N aturalization System s 

o f the U nited States undertaken in preparation for the 1952 revision o f the im m igration law s read 

the earlier version very narrow ly. ( “ T he section is rarely invoked and it is the general rule that 

violations m ust be prosecuted in the ju d icial district in w hich the offense w as c o m m itte d .” ) S. R ept. 

No. 1515, 81st C o n g ., 2d sess., at 650 (1950).

7T he earlier version o f § 1326 (8 U .S .C .§ 180 (a) (1940 e d .)) had provided:

If any alien has been arrested and deported in pursuance o f law . . . and if he enters or 

attem pts to en ter the U nited States. . . he shall be guilty o f a felony. . . .

Section 1326 now provides;

A ny alien w ho—

(1) has been arrested and deported o r ex cluded and deported and thereafter

(2) enters, attem pts to enter, o r is at any tim e found in, the U nited S tates. . .shall be 

guilty o f a felony. . . .

Ill
when he reentered. Although the difficulties inherent in proving where an alien 

had entered the country so as to establish the proper venue for a prosecution 

under § 1325 would appear to be no less than those which spurred the revision 

of § 1326,8 no comparable amendment to the former section was recommended;9 

the alteration that was accomplished in amending § 1329 to refer to that section 

as well, therefore, lacked the necessary foundation to have an equivalent effect.

We cannot reconcile the language of § 1329 with the requirement that 

prosecutions be undertaken in the district where the crime was committed; thus, 

we recommend that no future prosecutions under § 1325 be instituted except in 

such districts. We suggest the following language, which might serve as a 

substitute for that now included in the last sentence of § 9-73.110 of the United 

States Attorneys’ Manual:

Cases charging the defendant with eluding examination or inspection 

should be prosecuted in the district where the inspection station to 

which the alien was to have reported on entering the United States is 

located.

J o h n M . H a r m o n

Assistant Attorney General

Office o f Legal Counsel

"D eputy A ttorney G eneral P eyton Ford, testifying in 1951 during hearings on earlier versions o f 

im m igration legislation ultim ately adopted the follow ing y ear, stated that § 276 o f the bill (§ 1326)

. . . adds to ex istin g law by creating a crim e w hich will be com m itted if a previously 

deported alien is subsequently found in the U nited S tates. T his change w ould overcom e 

the inadequacies in existing law w hich have been observed in those cases in w hich it is 

not possible fo r the Im m igration and N aturalization Service to establish the place o f 

reentry, and hence the p ro p er ven u e, arising in prosecutions against a deported alien 

under the 1929 act. [Joint Hearings Before the Subcommittees o f the Committees on the

Judiciary on S. 716, H .R. 2379, and H.R. 2816, 82d C o n g ., 1st sess., at 716 (1951)]

9See n. 8, supra. N o m ention at all w as m ade o f the provisions that ultim ately becam e §§ 1325 

and 1329.

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