Unpublished Disposition, 928 F.2d 1138 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 1138 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Jose Luis QUINTANA-DELGADO, Defendant-Appellant.

No. 90-30039.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 4, 1991.* Decided March 25, 1991.

Appeal from the United States District Court for the Eastern District of Washington; No. CR-89-328-01-AAM, Alan A. McDonald, District Judge, Presiding.

E.D. Wash.

AFFIRMED.

Before WIGGINS, BRUNETTI and THOMAS G. NELSON, Circuit Judges.


MEMORANDUM** 

Jose Luis Quintana-Delgado ("Delgado") appeals the district court's denial of his motion to dismiss the charges brought against him under 8 U.S.C. § 1326, for being an alien who unlawfully entered the United States after deportation.

WE AFFIRM.

BACKGROUND

Appellant Delgado is a citizen and national of Mexico. On November 1, 1988, he was arrested in the United States and subsequently deported from the country. On or about January 11, 1989, Delgado reentered the United States and married Beverly Violette, an American citizen. Shortly thereafter, Violette petitioned to have Delgado classified as an "immediate relative" of a United States citizen, and, on July 19, 1989, the United States Immigration and Naturalization Service issued a Notice of Approval of Relative Immigration Visa Petition.

On August 8, 1989, Delgado was discovered in the Yakima County Jail, located within the Eastern District of Washington. Delgado had not applied to the Attorney General for permission to reenter the United States after his initial deportation. On August 17, 1989, a grand jury returned a single count indictment against Delgado for being an alien unlawfully in the United States after deportation, in violation of 8 U.S.C. § 1326. Delgado filed a motion to dismiss the charge, and on November 9, 1989, the district court denied the motion. A stipulated facts trial was conducted on November 14, 1989, after which the district court found Delgado guilty of violating Sec. 1326. The court sentenced Delgado to six months' imprisonment, and this appeal followed.

DISCUSSION

8 U.S.C. § 1326 states in pertinent part:

Any alien who--

(1) has been arrested and deported, and thereafter

(2) enters, attempts to enter, or is at any time found, in the United States, unless

(A) prior to re-embarkation 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; ...

shall be guilty of a felony ...

To prove a violation of Sec. 1326, the Government must show that a defendant is an alien and that the defendant entered the United States after being deported. Pena-Cabanillas v. United States, 394 F.2d 785, 789 (9th Cir. 1968).1  The Government "need not prove that appellant knew he was not entitled to enter the country without the permission of the Attorney General." Id. at 790. The undisputed facts of the instant case indicate that the elements of a Sec. 1326 violation are satisfied.

However, Delgado makes two arguments as to why Sec. 1326 cannot be applied to him. The first involves Sec. 1326(2) (A), and centers on the applicability of Sec. 1326 to an alien who has had a relative immigrant visa approved by the Attorney General. The second is a general contention that the Government has "waived the right to proceed with criminal charges" against Delgado because of the relative visa and because of Government correspondence with Delgado at a United States address after he reentered the country. Because these issues involve the interpretation of Sec. 1326, this court's review is de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

Section 1326(2) (A) establishes that an alien who has reentered the United States after deportation does not violate the statute if "prior to re-embarkation 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." This section's plain language indicates that a deported alien must receive the Attorney General's consent to reapply for admission prior to 1) re-embarking for the United States, or 2) applying for readmission.

It is clear that Delgado did not acquire the Attorney General's consent to reapply prior to entering the United States. Further, the record indicates that Delgado never sought permission to apply for reentry. Delgado argues that by applying for immigrant visa status and having that application approved, he has met the requirements of Sec. 1326(2) (A). His argument fails however, because he never received permission to apply for reentry and he did not contact the Attorney General prior to reentering the United States.

Delgado also argues that the Attorney General's approval of the relative immigrant visa constitutes the express permission for him to reenter the country. This is incorrect. As a result of the Attorney General's approval of the visa, Delgado is classified as an "immediate relative" of an American citizen. 8 U.S.C. § 1151(b). This court has explained that Sec. 1151(b) does not "authorize automatic admission of immediate relatives, but merely exempts them from the numerical limitations." Menezes v. INS, 601 F.2d 1028, 1032 (9th Cir. 1979); see also Malhotra v. Meyers, 552 F. Supp. 253, 254-55 (N.D. Ill. 1982). Therefore, immediate relative status does not, by its terms, constitute express permission to reenter the country. Instead, it places Delgado in a preferred status on the waiting list for the issuance of immigrant visas. Therefore, requesting and receiving approval of an immigrant visa does not meet the requirements of Sec. 1326(2) (a).

There is simply no reason that the Government's actions in this case indicate that it "waived" its right to prosecute Delgado under Sec. 1326. Nor is there any basis for an "estoppel" of prosecution.2  The Attorney General approved Delgado's visa, but as established above, Delgado did not comply with the clear requirement of Sec. 1326. The Attorney General's approval of an immigrant visa is independent of Sec. 1326, and its actions toward the relative visa application therefore have no logical connection with the Government's right to bring an action under Sec. 1326.

Delgado further relies on correspondence he received at his Washington address from the Immigration and Naturalization Service. Again, such correspondence should not act as a waiver of the Government's right to bring action under Sec. 1326. As the Government indicates, the INS addresses routine correspondence to an alien's last known address. In this case, that was Delgado's Washington address.

CONCLUSION

We AFFIRM the judgment of the district court.

 *

The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The Pena-Cabinallas court noted, "presence in the country itself is the conduct which Congress has seen fit to punish." 394 F.2d at 789 (quoting United States v. Alvarado-Soto, 120 F. Supp. 848 (S.D. Cal. 1954))

 2

Delgado uses United States v. Tallmadge, 829 F.2d 767 (9th Cir. 1987), as support for his argument. However, Tallmadge is distinguishable, as it involved the due process "entrapment by estoppel" defense. This defense can apply when an officer mistakenly misleads a defendant into a violation of the law. Id. at 773. In the instant case, all official action occurred subsequent to Delgado's violation of Sec. 1326