United States v. Rizo-Rizo, No. 20-50172 (9th Cir. 2021)
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A border patrol agent found and stopped Rizo-Rizo near the U.S./Mexico border. Rizo-Rizo admitted that he was a citizen of Mexico without appropriate immigration documents. The agent arrested him. Rizo-Rizo was then questioned again, waived his Miranda rights, and confirmed that he was a citizen of Mexico who had just “illegally entered.” Rizo-Rizo was charged with the misdemeanor of attempted illegal entry, 8 U.S.C. 1325(a)(1), and chose to plead guilty without a plea agreement. The magistrate listed these elements of attempted illegal entry. Defense counsel objected, claiming that “the Defendant ha[d] to know he was an alien” and that the magistrate had improperly omitted an element of the offense. The magistrate overruled the objection. Rizo-Rizo pled guilty and was sentenced to time served.
The district court and Ninth Circuit affirmed, holding that knowledge of alienage was not an element of 8 U.S.C. 1325(a)(1). The statute describes a regulatory offense and no presumption in favor of scienter applies.
Court Description: Criminal. Affirming a conviction for attempted illegal entry in violation of 8 U.S.C. § 1325(a)(1), the panel held that § 1325(a) is a regulatory offense such that the presumption in favor of scienter does not apply, and thus knowledge of alienage is not an element.
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