United States v. Anaya

ROETTGER, District Judge,

dissenting:

Defendants, the boat owners and crew members involved in the Mariel, Cuba, to Key West, Florida, “Freedom Flotilla,” are charged with a violation of 8 U.S.C. § 1324 (a)(1), which states in part that “Any person ... who ... brings into or lands in the United States, by any means of transportation or otherwise ... any alien ... not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States ... shall be guilty of a felony .... ”

In a case involving deportation under another section of the act, United States v. Wong Kim Bo, 472 F.2d 720 (5th Cir. 1972) the court quoted approvingly:

In construing statutes, words are to be given their natural, plain, ordinary and commonly understood meaning unless it is clear that some other meaning was intended (cite omitted); and where Congress has carefully employed a term in one place and excluded it in another it should not be implied where excluded. City of Burbank v. General Electric Co., 329 F.2d 825 (9th Cir. 1964). 472 F.2d at 722 .

If “brings into or lands” is construed in the normal sense of the words, defendants can be charged with a crime for their responsibility in creating the physical presence of the aliens in the United States.

However, if “brings into or lands” necessarily involves an “entry”, a series of further questions must be met: did the aliens imported by defendants “enter” the United States or does their status as parolees under 8 U.S.C. § 1182 (d)(5) negate entrance? If the paroles given the aliens negate entrance, were those paroles granted in time to absolve defendants from guilt for “bringing” them into the country, or was the crime fully completed when the aliens entered United States waters, before they reached the immigration official who paroled them? In other words, was there entrance, then parole, or was there never entrance in the technical sense of the word?

The issues are interconnected but the case law is inconclusive. Most of the cases cited, both by the Government and by the defendants, involve clandestine or fraudulent arrivals; others construe 8 U.S.C. § 1324 (a)(4) instead of (a)(1). The (a)(4) subsection penalizes one who willfully or knowingly encourages or induces ... the entry” of an illegal alien; thus arguments that parole means never having to say you entered are decisive as to (a)(4) but beg the (a)(1) question.

Given the limited nature of a ruling on a pre-trial motion to dismiss, the finer points of the entry-parole relationship need never *303 be reached. Under the plain language of the statute, a crime against the United States has been charged. 1

STATUTORY LANGUAGE

The framers of the Immigration Act did not find it necessary to define either “brings in” or “lands.” However, “entry” is defined, in 8 U.S.C. § 1101 (a)(13) as “any coming of an alien into the United States, from a foreign port or place ....”, with exceptions not relevant here. To reduce defendants’ argument to the absurd, then, in order to have brought into the United States the illegal aliens, those aliens have to have come into the country. Distinction is also made between 8 U.S.C. § 1324 (a)(l)’s proscription against “brings into” and 8 U.S.C. § 1323 , which makes it unlawful “for any person ... to bring to the United States ... any alien who does not have an unexpired visa, if a visa was required Defendants’ argument, and that of the court en banc, is that bringing to merely involves arrival; bringing into involves entry.

The judicial gloss on “entry” is considerable.

While earlier statutes did not define entry, “... the courts attempted to achieve a reasonable construction of those words consistent with the sense of the situation.” United States v. Vasilatos, 209 F.2d 195,197 (3rd Cir. 1954). In that case, “arrival at a port” and subsequent detention pending formal action on a request for admission was distinguished from an “entry” which was considered not accomplished. 209 F.2d at 197 . Entry has been defined in Vasilatos and in more recent cases as a physical presence in the United States coupled with “freedom from official restraint”, 209 F.2d at 197 , United States v. Oscar, 496 F.2d 492, 493 (9th Cir. 1974), United States v. Kavazanjian, 623 F.2d 730, 736 (1st Cir. 1980). 2

Thus, parole is not considered entry. Defendants rely on United States v. Kavazanjian, 623 F.2d 730 (1st Cir. 1980), involving a conviction under the “entry” section, 8 U.S.C. § 1324 (a)(4). In that case, the First Circuit said “It is also apparent ... that no entry occurred when the aliens were paroled pending disposition of their asylum requests.”

In dictum the Kavazanjian court commented on the relationship, if any, between “brings into” and “entry.” However, the comment was so ambiguous as to allow opposite constructions either as equating “entry” with “bringing into” or as distinguishing the two. The Kavazanjian court quoted the wording of § 1324(a)(4), then added:

As is evident from the language and is underscored by the fact that the first paragraph of § 1324(a) punishes anyone who “brings into or lands in the United States” an illegal alien, id. § 1324(a)(1), an actual or contemplated “entry" is a prerequisite to any conviction under § 1324(a)(4). (footnote omitted). 623 F.2d at 736 .

In stark contrast to those who equate “bringing into” with “entry,” Mr. Justice Holmes long ago offered a simpler definition: “ ‘Bringing to the United States,’ taken literally and nicely, means ... transporting with intent to leave in the United States and for the sake of transport ... the later words ‘to land’ mean to go ashore.” Taylor v. United States, 207 U.S. 120 , 125- *304 126, 28 S.Ct. 53, 54 , 52 L.Ed. 130 (1907). In Taylor , the Supreme Court construed a precursor statute both to 8 U.S.C. § 1321 and to the statute at issue which made it the “duty of the owners, officers and agents of any vessel bringing an alien to the United States to adopt due precautions to prevent the landing of any such alien ... at any time or place other than that designated by the immigration officers ...” (Immigration Act of 1903, Chap. 1012 § 18). The two cases in Taylor involved seamen jumping ship; those in charge of the vessel were considered not to have been “bringing” the seamen “to” the United States. Although Mr. Justice Holmes’ definition is of “bringing to” rather than “bringing into” it would appear that no “entry” of the formal kind was contemplated as part of the crime involved.

None of the other cases give any better definition of “bringing” than the one given by Mr. Justice Holmes. The case law informs as to specific acts that constitute “bringing” or “entering,” but the link between the two seen by the court en banc is simply not to be found in either the statute or the reported decisions.

In fact, it appears from a 1929 Fifth Circuit case that “bringing into” is to be construed broadly, not in the narrow, technical way suggested by the court. In Middleton v. United States, 32 F.2d 239 (5th Cir. 1929), the conviction of a man apparently attempting to land illegal aliens surreptitiously was affirmed, under a precursor statute with pertinent wording identical to that of 8 U.S.C. § 1324 (a)(1). As the boat bearing the aliens entered American waters, it caught fire before it could reach land. “The words ‘bringing into’ are not synonymous with, but are more comprehensive than, the words ‘land in,’ ” wrote the court, “and were intended by the statute to punish violations of the immigration laws in cases where an actual landing or placing of aliens on shore could not be shown.” 32 F.2d at 240 . Further, the court observed that the defendant “... brought the aliens into the territorial waters of the United States when he came within half a mile of the Keys .... ” Ibid. This was held to be within “[t]he statute under consideration [which] provides that any person who shall ‘bring into or land in the United States, by vessel or otherwise,’ any alien not lawfully entitled to enter, shall be deemed guilty ... ”. Ibid. Middleton is a convincing statement of the breadth of the statute, adding to the understanding of “bringing into” even though it is distinguishable factually from the instant cases.

The Middleton case is not the only expression of the Fifth Circuit’s fairly broad reading of a “bring into" and “land” statute. See Bland v. United States, 299 F.2d 105 (5th Cir. 1962) and Sotorios Targakis v. United States, 12 F.2d 498 (5th Cir. 1926).

Although both Bland and Sotorios Targakis were cases involving smuggling, the Fifth Circuit’s pronouncements would seem to indicate that the key to the statute is not the “not lawfully entitled to enter or reside” clause, but the “brings into or lands” wording.

It seems clear that the Fifth Circuit reads liberally the plain language of both 8 U.S.C. § 1324 (a)(1) and its predecessor as authorizing criminal charges to be brought against those responsible for the presence of undocumented aliens. Although all three of those cases involved an element of surreptitiousness, the cases do not indicate the Fifth Circuit would narrow its view to the technical “entry” definition on which the court relies.

The Fifth Circuit had occasion to consider the amount of action needed to “bring” an alien “into” the United States in United States v. Washington, 471 F.2d 402 (5th Cir. 1973), cert. den. 412 U.S. 930 , 93 S.Ct. 2759 , 37 L.Ed.2d 158 (1973), a case brought under § 1324(a)(1). The conduct of the defendant who, for pay from illegal aliens, gave each of them false papers, arranged transportation to the United States, and coached them on clearing immigration, “cannot reasonably be said to be a case in which the aliens independently ‘took themselves’ up to the inspection line,” wrote the court in affirming the conviction. 471 F.2d at 405 . See also United States v. Bunker, 532 F.2d 1262 *305 (9th Cir. 1976), upholding a conviction under § 1324(a)(1) where defendant had brought in aliens entitled to enter but not reside. “Although section 1324(a)(1) prosecutions are commonly based on smuggling of the usual sort, there has never been any indication that more subtle kinds of smuggling were not also within its reach.” (footnote omitted). 532 F.2d at 1226 .

Thus, while the case law relates specific, distinguishable situations in which there is or is not a “bringing into” or an “entry,” the ultimate question of whether “bringing into” necessarily entails an “entry” on the part of one brought in comes down to basic principles. If “bringing into” meant “entering,” (a)(4) would be somewhat of a redundancy.

In the instant cases “bringing into or landing” has a plain, commonly-understood meaning — so much so that Congress saw no need to define the phrase in the definitions section of the statute, 8 U.S.C. § 1101 . Further, Congress employed a term in one place and excluded it in another, saving the word “entry” for 8 U.S.C. § 1324 (a)(4). See the admonition in United States v. Wong Kim Bo, supra.

The fact that Congress in the 1952 Code revisions used “brings to” in §§ 1321 and 1322 but “brings into” in § 1324 is a bit puzzling; however, I cannot agree that reading “entry” into “brings into” is the solution. Further, the Fifth Circuit in Middleton stated that being within a half-mile of the Keys was within the scope of “brings into.” Middleton may have been overly broad or mere dictum but I feel bound by its reading of the clear language as well as by the other Fifth Circuit decisions and the Taylor rationale, supra.

The en banc court of this District, convened simply to decide pre-trial motions to dismiss, need not concern itself with either Congress’ intent in passing 8 U.S.C. § 1324 (aXl) nor with the intricate relationship between “entry” and “parole” — neither word appears in the statute at issue. All it needs to do is take the statute’s language at face value, and deny the motions. With respect to the en banc court’s going further in this analysis, I dissent.

. Because I do not reach the issue of criminal intent, I cannot agree with Judge Eaton’s concurring opinion, although I basically share his views on the meaning of “brings into.” I believe the stipulation that defendants “presented” the aliens to immigration officials so that they “could seek political asylum ...” is not so broad as to decide the issue of willfulness; I feel that is an issue rightly left for trial. Reliance upon stipulations in this Circuit seems speculative. See United States v. Farese, 611 F.2d 67 (5th Cir. 1980).

. The importance of the distinction between “entry” and a lesser level of involvement is that someone who has “entered” must be given due process rights prior to deportation, 8 U.S.C. § 1252 (b), while one who has not yet “entered” can be more easily ousted by “exclusion” under 8 U.S.C. § 1226 (a). Parole is “temporary” and “shall not be regarded as an admission of the alien” 8 U.S.C. § 1182 (d)(5); and upon termination of parole status, an alien can be excluded without deportation proceedings.