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 asdesignated 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 ."

110Absent 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 fordeportation. 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 applyto 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. . . .

Illwhen 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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