Defining “Found In”: Constructive Discovery and the Crime of Illegal Reentry

By:  Jason D. Anton

 

Over the past decade, the crime of illegal reentry has risen to prominence. It is not only the most common federal immigration charge, but also the most prosecuted federal crime. The cost of enforcing illegal reentry offenses has grown in kind, and Immigration and Customs Enforcement (ICE) is now particularly resource-strapped. Against this backdrop, this Note addresses an ambiguous provision in the statute governing illegal reentry, the interpretation of which could have a substantial impact on its enforcement and, by extension, the security interests the law seeks to protect.

 

An individual is guilty of illegal reentry if he is “at any time found in . . . the United States” after deportation. The federal circuits interpret this “found in” clause in different ways. In particular, they disagree over whether the federal government may be imputed with knowledge of an individual’s illegal presence in the United States (i.e., being “found”) if the government has the ability, through the exercise of diligence typical of law enforcement authorities, to obtain that knowledge itself. If such a “constructive discovery” standard were adopted, a given illegal reentry may be considered “complete,” and the five-year statute of limitations would begin to run, far earlier than if the government were required to actually find that illegal reentrant.

 

After weighing the merits of each interpretation, including the effects on both ICE and future defendants, and taking into account the scant legislative history of the “found in” clause, this Note recommends a middle ground. It argues that courts should only be able to impute the federal government with knowledge of an illegal reentrant’s status, i.e., the fact that he is not legally permitted to be present in the United States, and not that of his presence, i.e., the fact that he is physically located in the United States.

 

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