Petition for Writ of Certiorari — Ivan Granillo, Petitioner v. United States

Supreme Court briefJan 26, 2026

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No. _____

IN THE SUPREME COURT OF THE UNITED STATES

═════════════════════════

IVAN GRANILLO

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

═════════════════════════

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

═════════════════════════

Veronica Portillo-Heap

Federal Defenders of San Diego, Inc.

225 Broadway, Suite 900

San Diego, California 92101

Veronica_Portillo-Heap@fd.org

Counsel for Petitioner

QUESTION PRESENTED FOR REVIEW

When a noncitizen is “in the United States in violation of law,” it is a federal

crime, punishable by five years in prison, to “transport or move” that person “within

the United States by means of transportation or otherwise, in furtherance of such

violation of law.” 8 U.S.C. § 1324(a)(1)(A)(ii).

The question presented is:

What mens rea is required for the element that the defendant transport or

move the noncitizen “in furtherance” of a violation of law?

--prefix--

PARTIES, RELATED PROCEEDINGS, AND RULE 29.6 STATEMENT

The parties to the proceeding below were Petitioner Ivan Granillo and the

United States. There are no non-governmental corporate parties requiring a

disclosure statement under Supreme Court Rule 29.6.

All proceedings related to the case, per Rule 14.1(b)(iii), are as follows:

•

United States v. Granillo, No. 23-CR-1419-RSH. U.S. District Court for the

Southern District of California. Judgment issued December 22, 2023. United

States v. Granillo, No. 24-46, Docket No. 52. U.S. Court of Appeals for the

Ninth Circuit, Memorandum disposition issued August 19, 2025.

•

United States v. Granillo, No. 24-46, U.S. Court of Appeals for the Ninth

Circuit. Order denying petition for rehearing. October 28, 2025.

i

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ..........................................................prefix

PARTIES, RELATED PROCEEDINGS, AND RULE 29.6 STATEMENT .................. i

TABLE OF AUTHORITIES ......................................................................................... iii

INTRODUCTION .......................................................................................................... 1

OPINION BELOW......................................................................................................... 3

JURISDICTION............................................................................................................. 4

RELEVANT STATUTORY PROVISION...................................................................... 4

STATEMENT OF THE CASE ....................................................................................... 4

REASONS FOR GRANTING THE WRIT .................................................................... 7

I.

The circuits disagree about which mens rea is required for the “in

furtherance” element of § 1324(a)(1)(A)(ii) ........................................................ 9

A.

The Fifth Circuit and Sixth Circuit require a specific intent to violate

immigration law ....................................................................................... 9

B.

The Seventh Circuit holds that mere knowledge that the

transportation furthers a noncitizen’s illegal presence is sufficient

under § 1324(a)(1)(A)(ii) ......................................................................... 12

C.

The Eleventh Circuit takes a conduct-based approach, requiring that

the defendant’s conduct further a violation of immigration law .......... 13

D.

In the First, Third, Eighth, and Tenth Circuits, the defendant must

have acted “willfully” in furtherance of a violation of immigration law ..

................................................................................................................. 15

E.

The Ninth Circuit has taken inconsistent approaches ......................... 19

II.

The division among the circuits demands this Court’s attention ................... 21

III.

Mr. Granillo’s case presents the right vehicle to resolve this circuit split ..... 23

IV.

This Court should find that § 1324(a)(1)(A)(ii) requires an intentional or

purposeful mens rea, as the Fifth Circuit and Sixth Circuit have long held

........................................................................................................................... 25

CONCLUSION............................................................................................................. 27

ii

TABLE OF AUTHORITIES

Federal Cases

Page(s)

Borden v. United States,

593 U.S. 420 (2021) ............................................................................................... 20

Ruan v. United States,

597 U.S. 450 (2022) ............................................................................................... 26

United States v. 1982 Chevrolet Crew-Cab Truck,

810 F.2d 178 (8th Cir. 1987) ................................................................................. 17

United States v. 1982 Ford Pick–Up, VIN 1FTDX15G7CKA31957, TEXAS LIC. NO.

VM–5394 and 1979 Chevrolet Pick–Up VIN CCS349Z136258, Texas Lic. No. 377–

8EE,

873 F.2d 947 (6th Cir.1989) ...................................................................... 11, 25, 26

United States v. Barajas-Chavez,

162 F.3d 1285 (10th Cir. 1999) (en banc) ................................................... 3, 18, 19

United States v. Barajas-Montiel,

185 F.3d 947 (9th Cir. 1999) ................................................................ 3, 19, 20, 21

United States v. De La Cruz,

703 F.3d 1193 (10th Cir. 2013) ............................................................................. 18

United States v. Diaz,

936 F.2d 786 (5th Cir. 1991) ............................................................................. 2, 10

United States v. Dominguez,

661 F.3d 1051 (11th Cir. 2011) ................................................................... 2, 13, 14

United States v. Fei Lin,

139 F.3d 1303 (9th Cir. 1998) ............................................................................... 23

United States v. Guerra-Garcia,

336 F.3d 19 (1st Cir. 2003) ............................................................................. 16, 17

United States v. Hansen,

599 U.S. 762 (2023) ............................................................................................... 26

United States v. Hernandez,

913 F.2d 568 (8th Cir. 1990) ............................................................................. 3, 17

United States v. Irias-Romero,

82 F.4th 422 (5th Cir. 2023) ............................................................................. 9, 10

iii

United States v. Kendrick,

682 F.3d 974 .................................................................................................... 14, 15

United States v. McClellan,

794 F.3d 743, (7th Cir. 2015) ................................................................................ 13

United States v. Medina-Garcia,

918 F.2d 4 (1st Cir.1990) .................................................................................. 3, 16

United States v. Merkt,

764 F.2d 266 (5th Cir. 1985) ........................................................................... 10, 25

United States v. Nolasco-Rosas,

286 F.3d 762 (5th Cir. 2002) ................................................................................... 9

United States v. One 1982 Toyota SR 5 Pick-Up Truck,

642 F.Supp 335 (N.D. Ill 1986) ............................................................................ 17

United States v. Parmalee,

42 F.3d 387 (7th Cir. 1994) ......................................................................... 2, 12, 13

United States v. Perez-Gonzalez,

307 F.3d 443 (6th Cir. 2002) ................................................................................. 11

United States v. Sheridan,

838 F.3d 671 (5th Cir. 2016) ................................................................................. 10

United States v. Silveus,

542 F.3d 993 (3d Cir. 2008) ........................................................................ 3, 15, 16

United States v. Stonefish,

402 F.3d 691 (6th Cir. 2005) ....................................................................... 2, 11, 12

United States v. United States Gypsum Company,

438 U.S. 422 (1978) ............................................................................................... 26

United States v. Velasquez-Cruz,

929 F.2d 420 (8th Cir. 1991) ................................................................................. 17

Federal Statutes

8 U.S.C. § 1324(a)(1)(A) ...................................................................................... passim

28 U.S.C. § 1254(1) ...................................................................................................... 4

iv

No. _____

IN THE SUPREME COURT OF THE UNITED STATES

═════════════════════════

IVAN GRANILLO

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

═════════════════════════

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

═════════════════════════

Petitioner Ivan Granillo respectfully requests that the Court issue a writ of

certiorari to review the order of the United States Court of Appeals for the Ninth

Circuit in this case.

INTRODUCTION

The relevant statute, 8 U.S.C. § 1324(a)(1)(A)(ii), makes it a felony to

“transport or move” an unauthorized immigrant within the United States if the

transport is “in furtherance of such violation of law.” Circuit courts agree that it is

an element of the offense that the passenger (i.e., the person transported) must

“ha[ve] come to, entered, or remain[ed] in the United States in violation of law”—

i.e., they must be an unauthorized immigrant. The circuit courts also agree that a

defendant must have “know[ledge] or [be] in reckless disregard of the fact” that the

passenger is an unauthorized immigrant.

The circuit courts are hopelessly divided, however, over the mens rea for the

“in furtherance” element of § 1324(a)(1)(A)(ii). There are roughly four different

approaches. First, the Fifth Circuit requires that the defendant commit an

“intentional furtherance of the violation of the law,” and the Sixth Circuit requires

functionally the same, i.e., that the defendant have “the purpose of furthering the[]

[alien’s] illegal presence in the United States.” See United States v. Diaz, 936 F.2d

786, 788 (5th Cir. 1991) (emphasis added); United States v. Stonefish, 402 F.3d 691,

699 (6th Cir. 2005) (emphasis added). Second, the Seventh Circuit has a lower mens

rea, holding that mere “knowledge that [a defendant’s] transportation activity

furthers an illegal alien’s presence in the United States” is an element, but that

specific intent is not. United States v. Parmalee, 42 F.3d 387, 391 (7th Cir. 1994)

(emphasis added). Third, the Eleventh Circuit has adopted a conduct-based

approach, allowing conviction only if the defendant’s actions furthered a violation of

immigration law. United States v. Dominguez, 661 F.3d 1051, 1068, 1070 (11th Cir.

2011) (holding that “conduct done knowingly or with reckless disregard is sufficient”

and examining the defendant’s conduct). Fourth, the First Circuit, Third Circuit,

Eighth Circuit, and Tenth Circuit require that the defendant acted “willfully in

2

furtherance of the alien’s unlawful presence,” but do not have a uniform definition

of “willfully.” United States v. Silveus, 542 F.3d 993, 1002 (3d Cir. 2008); United

States v. Medina-Garcia, 918 F.2d 4, 8 (1st Cir.1990) (same); United States v.

Hernandez, 913 F.2d 568, 569 (8th Cir. 1990) (same); United States v. BarajasChavez, 162 F.3d 1285, 1287 (10th Cir. 1999) (en banc).

Finally, the Ninth Circuit does not have a consistent approach to the

requisite mens rea. The Ninth Circuit has held the statute requires a specific intent

to violate immigration law. United States v. Barajas-Montiel, 185 F.3d 947, 954 (9th

Cir. 1999). But the Ninth Circuit’s model instruction, which was affirmed here,

permits conviction upon mere knowledge that the transportation would “help [the

noncitizen] remain in the United States illegally.” Pet. App. A, A4.

The approach taken matters because the instruction given in this case would

likely pass muster in the Seventh Circuit or the Eleventh Circuit but would be

deficient in the Fifth Circuit or the Sixth Circuit. The instruction would likely also

be deficient in the First Circuit, Third Circuit, or Eighth Circuit for lack of the

magic word “willfully.” Because the Government prosecutes thousands of people

every year under § 1324(a)(1)(A) for so-called “alien smuggling” crimes, acts that are

entirely innocent in some circuits are criminal in others.

Only this Court can ensure that criminal liability for this offense is consistent

nationwide, no matter where the transportation occurs.

OPINION BELOW

The Ninth Circuit panel affirmed petitioner’s conviction in a memorandum

disposition reprinted in the Appendix to the Petition. See Pet. App. A. Petitioner

3

subsequently filed a petition for rehearing and rehearing en banc, which was

denied. See United States v. Granillo, No. 24-46, Docket No. 52.

JURISDICTION

The panel decision of the court of appeals was issued on August 19, 2025. See

Pet. App. A. The Ninth Circuit denied en banc review on October 28, 2025. See

United States v. Granillo, No. 24-46, Docket No. 52. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISION

8 U.S.C. § 1324(a)(1)(A) provides: “Any person who … (ii) knowing or in

reckless disregard of the fact that an alien has come to, entered, or remains in the

United States in violation of law, transports, or moves or attempts to transport or

move such alien within the United States by means of transportation or otherwise,

in furtherance of such violation of law … shall be punished[.]”

STATEMENT OF THE CASE

On June 23, 2023, petitioner Ivan Granillo drove to the San Ysidro Port of

Entry, planning to check his mail and run errands in San Diego, California. A

United States citizen by birth, Mr. Granillo lived in Tijuana, Baja California,

Mexico, but maintained a P.O. Box in his native San Diego. That day Mr. Granillo

was accompanied by a friend of a friend sitting in his front passenger seat who

entered the car holding a United States passport.

Mr. Granillo and his passenger waited in a line of cars at the port of entry

before inspection by Customs and Border Protection (CBP) officers. Before getting to

4

the inspection booth, they drove over a line of yellow speed bumps demarcating the

international boundary between Mexico and the United States. Mr. Granillo then

stopped his car at the primary inspection booth. The passenger handed Mr. Granillo

a United States passport. Mr. Granillo provided a CBP officer with his own

California identification card and the United States passport provided by the

passenger.

Officers confirmed that the California identification card belonged to Mr.

Granillo but determined that the passenger was an “imposter” who presented a

document that was not rightfully his.

The government charged Mr. Granillo with attempting to transport an

undocumented person within the United States in violation of 8 U.S.C. §

1324(a)(1)(A)(ii). Mr. Granillo proceeded to trial and maintained that he did not

know the passenger was undocumented and did not intend to help him enter or

remain in the United States illegally.

At trial, the government presented testimony from the CBP officers who

inspected Mr. Granillo and the passenger at the port of entry. Mr. Granillo testified

in his own defense that he did not learn that the passenger was not a United States

citizen until the officers told him so at the primary inspection booth. Mr. Granillo

explained that the passenger was a friend of a friend who he agreed to provide a

ride to the port of entry. The government’s case relied on circumstantial evidence,

including a recorded deposition of the passenger and text messages on the

passenger’s phone, none of which conclusively established that Mr. Granillo had

5

knowledge of the passenger’s status or that he intended to help the passenger enter

or remain in the United States illegally.

At a jury instruction conference, the district court proposed using the Ninth

Circuit’s model instruction as to the elements of the offense. That instruction

requires that the “defendant knowingly transported or moved the alien to help him

remain in the United States illegally” but does not require an intent to help the

passenger violate immigration law. See Ninth Circuit Model Criminal Jury

Instruction 7.2 (Alien—Illegal Transportation or Attempted Transportation (8

U.S.C. § 1324(a)(1)(A)(ii)), available at: https://www.ce9.uscourts.gov/juryinstructions/node/912. Mr. Granillo objected, citing prior Ninth Circuit case law and

proposing language that “the defendant acted with the intent to violate the

immigration laws by assisting the passenger to enter the United States illegally.”

The district court overruled the objection and read the model instruction to the jury.

After closing arguments, the jury deliberated for several hours before they

broke for the day. The next morning, the jury resumed deliberations and submitted

two notes about the meaning of the word “knowingly.” The jurors asked whether the

word “‘knowingly’ appl[ied] to the whole sentence or only attempting to transport or

move?” The second note asked whether the defendant had to know the passenger

was undocumented “prior to imposter check,” meaning before the CBP officer was

provided identification documents. The district court read back part of the model

instruction and also stated that “’knowingly’ applied to ‘attempted to transport or

move [the passenger] to help him remain in the United States illegally.”

6

The jury continued to deliberate and ultimately found Mr. Granillo guilty. He

appealed his conviction on multiple grounds. As relevant here, he renewed his

argument that § 1324(a)(1)(A)(ii) requires an intent to further a violation of

immigration law.

The Ninth Circuit affirmed Mr. Granillo’s conviction and its model

instruction in a memorandum disposition. The court concluded that the model

instruction “adequately conveyed the requisite specific intent.” Pet. App., A4. In

claiming any error was harmless, however, the memorandum described the mens

rea as “Granillo knew his passenger was unlawfully present and intended to

transport him.” Pet. App., A5 (emphasis added). In other words, the decision rested

on a theory that an individual need only have the “specific intent” to “transport,” as

opposed to any intent that the transportation help the noncitizen remain in the

United States illegally. Mr. Granillo pointed to this inconsistency in the circuit’s

case law in his petition for panel rehearing, which was also denied.

REASONS FOR GRANTING THE WRIT

The courts of appeals are divided as to which mens rea applies to the “in

furtherance” element of 8 U.S.C. § 1324(a)(1)(A)(ii). All courts agree that the

defendant must either have knowledge or be in reckless disregard of the fact that

the person transported is an unauthorized immigrant. But the courts have taken

roughly four different approaches to the remaining elements. The Fifth Circuit and

Sixth Circuit require a specific intent or purpose to violate immigration law. The

Seventh Circuit holds that mere knowledge that the transportation furthers a

7

noncitizen’s illegal presence is sufficient. The Eleventh Circuit requires that the

defendant’s conduct have furthered the unauthorized immigrant’s illegal presence,

even if that was not the defendant’s actual intent. The First Circuit, Third Circuit,

Eighth Circuit, and Tenth Circuit require that the defendant act “willfully in

furtherance of the alien’s unlawful presence” but do not have a unified definition for

“willfully.” And the Ninth Circuit has been inconsistent, alternating between

requiring a specific intent or mere knowledge that the defendant’s actions helped an

unauthorized immigrant to stay in the United States illegally or in violation of

immigration law.

The facts of Mr. Granillo’s case illustrate how and why the different

approaches matter. Here, if the jury determined that Mr. Granillo learned that his

passenger was an imposter while waiting in line at the border it could (and did)

convict him simply because he chose to continue driving. But if the same events

occurred in the Fifth or Sixth Circuits, the jury would have had to determine that

Mr. Granillo continued driving with the intent to further the alien’s unlawful

presence, as opposed to just the intent to continue on and pick up his mail.

The Court should resolve this split concerning a frequently prosecuted

immigration offense. The issue was preserved below, and the Ninth Circuit has

alternately appeared to agree with different approaches. In this case, the Ninth

Circuit’s memorandum asserted that § 1324(a)(1)(A) requires a specific intent but

limited that to an intent to transport. However, the right instruction would have

also required an intent to further or help the noncitizen to stay in the United States

8

illegally. Only this Court can remedy the circuit courts’ disagreement about the

elements of the offense so that the meaning of this law is comprehensible and

people have fair warning as to the mens rea criminalized.

The Court should therefore grant the petition.

I.

The circuits disagree about which mens rea is required for the “in

furtherance” element of § 1324(a)(1)(A)(ii).

The courts of appeals are divided into approximately four different camps

over the mens rea for the “in furtherance” element of § 1324(a)(1)(A)(ii).

A.

The Fifth Circuit and Sixth Circuit require a specific intent to

violate immigration law.

The Fifth Circuit has long required that the defendant have “transported the

alien within the United States with intent to further the alien’s unlawful presence.”

United States v. Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir. 2002) (emphasis added).

This intent element is in addition to the element that the defendant “knew or

recklessly disregarded the fact that the alien was in the country in violation of the

law.” Id.

The Fifth Circuit recently reaffirmed the elements of § 1324(a)(1)(A)(ii) in

United States v. Irias-Romero, 82 F.4th 422, 425 (5th Cir. 2023). The court held that

“[t]o convict the defendant of violating this statute, ‘the jury had to find beyond a

reasonable doubt that (1) an alien illegally entered or remained in the United

States; (2) [the defendant] transported the alien within the United States intending

to further that unlawful purpose; and (3) [the defendant] knew or recklessly

disregarded the fact that the alien was illegally in the United States.” Id. at 425

(emphasis added).

9

The Fifth Circuit clearly distinguishes between the knowledge of unlawful

status and the intent to further the undocumented person’s unlawful presence. For

example, the Fifth Circuit explained that the elements “require[] the jury to find

that the defendant knows that a person, ... is an alien,” but also that the defendant

have “both actual knowledge of the alien’s presence as well as ‘intent to further the

alien’s unlawful presence.’” United States v. Sheridan, 838 F.3d 671, 672-73 (5th

Cir. 2016) (emphasis added). Likewise, the Fifth Circuit has held that “the

defendant’s knowledge of the illegal status and her knowing and intentional

furtherance of the violation of the law by the alien” are both “essential element[s]”

of the offense. United States v. Diaz, 936 F.2d 786, 788 (5th Cir. 1991).

The “intentional furtherance of the violation of law” means that a defendant

who “asserts that she never intended to further the aliens’ illegal presence in this

country, but sought only to assist them in reaching” their destination has a defense

to the “intent” element. United States v. Merkt, 764 F.2d 266, 270 (5th Cir. 1985).

Put differently, “[b]y definition, a person intending to assist an alien in obtaining

legal status is not acting ‘in furtherance of’ the alien’s illegal presence in this

country.” Id. at 272. Consistent with this case law, the Fifth Circuit’s pattern

instruction requires that the “defendant transported [moved] [attempted to

transport or move] the alien within the United States with the intent to further the

alien’s unlawful presence.” See Fifth Circuit Model Instruction 2.01B, Transporting

aliens within the United States, 8 U.S.C. § 1324(a)(1)(A)(ii), available at:

10

https://www.lb5.uscourts.gov/viewer/?/juryinstructions/Fifth/PJICRIMINAL_2024_EDITION_FINAL.pdf (emphasis added).

Much like the Fifth Circuit, the Sixth Circuit requires that the defendant

“transported ‘the person in order to help him remain in the United States illegally’

and not for some ‘other innocent reason.’” United States v. Stonefish, 402 F.3d 691,

699 (6th Cir. 2005). Specifically, the defendant must have “transported the illegal

aliens for the purpose of furthering their illegal presence in the United States.” Id.

at 699 (emphasis added). In other words, the defendant must have a “specific intent

... ‘to deliberately assist an alien in maintaining his illegal presence’ in this country.”

Id. at 695 (emphases added). See also United States v. Perez-Gonzalez, 307 F.3d 443,

445 (6th Cir. 2002) (“[W]e adopted an intent-based approach that requires ... the

specific intent of supporting the alien’s illegal presence.”)

The “purpose of furthering their illegal presence” means that the incidental

transportation of noncitizens does not constitute a crime. For example, in United

States v. 1982 Ford Pick–Up, VIN 1FTDX15G7CKA31957, TEXAS LIC. NO. VM–

5394 and 1979 Chevrolet Pick–Up VIN CCS349Z136258, Texas Lic. No. 377–8EE ,

873 F.2d 947, 950–51 (6th Cir.1989), the Sixth Circuit held that the government

could “not obtain a forfeiture of the [defendants’] vehicles” for a violation of §

1324(a)(1)(A)(ii) because the defendants’ “purpose was to promote the well-being of

friends and relatives by helping them obtain employment,” “not to support their

illegal presence, though that may have been the ultimate effect of their actions.” Id.

at 952. The court found the defendants’ actions “were quite innocent,” given that

11

they “received no financial remuneration for helping their passengers move [out of

state]” and that they “made no attempt to hide their passengers or otherwise

conceal the fact that they were illegal aliens.” Id. at 952. The government had

“failed to prove” the essential element that the defendant “transported an illegal

alien with the specific intent of supporting the alien’s illegal presence.” Id. at 951.

Similarly, in Stonefish, the Sixth Circuit elaborated that “a person who

knowingly gives an alien a ride to a homeless shelter may not be prosecuted under

the above statute for transporting an illegal alien” because the “acts performed

[must have] the purpose of supporting or promoting an illegal alien’s conduct.” 402

F.3d at 696. The court explained that a defendant who provided transportation that

was “incidental to or merely permit[ted] an individual to maintain his existence”

and did not have the “specific intent” to “deliberately assist an alien in maintaining

his or her illegal presence” has not violated the statute. Id. at 695–96. While the

language they use is slightly different, the Fifth and Sixth Circuits both require the

specific intent or purpose to “deliberately assist” a noncitizen to remain in the

United States illegally.

B.

The Seventh Circuit holds that mere knowledge that the

transportation furthers a noncitizen’s illegal presence is

sufficient under § 1324(a)(1)(A)(ii).

Other circuits take a different approach, with a less exacting mens rea

requirement. The Seventh Circuit, for example, has held that “a defendant’s guilty

knowledge that his transportation activity furthers an illegal alien’s presence in the

United States is an essential element of the crime.” United States v. Parmalee, 42

F.3d 387, 391 (7th Cir. 1994). The Seventh Circuit acknowledged that the Sixth

12

Circuit had taken an “’intent-based’ approach[]” to transportation offenses under §

1324(a)(1)(A)(ii), but “decline[d] to adopt” an intent-based approach or element. Id.

See also United States v. McClellan, 794 F.3d 743, (7th Cir. 2015) (observing that

there was “no law from th[e Seventh] [C]ircuit holding that § 1324 incorporates a

specific intent requirement and, relatedly, no circuit law requiring a specific intent

instruction”). In simpler terms, the Seventh Circuit requires that the defendant “act

knowingly in furthering the transport of the illegal aliens.” Parmalee, 42 F.3d at

393.

Applying this rule to the facts of that case, the court held that “under the

factual circumstances of [that] case,” a “rational jury, which found that the

defendants knew that the aliens were illegal, also would have necessarily found

that the defendants knew their activity furthered the aliens’ violation of law.” Id.

(pointing to “unrebutted evidence that the defendants furtively transported the

aliens late at night; drove evasively to elude police surveillance, at times at high

rates of speed; and received compensation by the carload for the delivery of the

luggage-laden and foreign-speaking aliens who were strangers to the defendants”).

C.

The Eleventh Circuit takes a conduct-based approach,

requiring that the defendant’s conduct further a violation of

immigration law.

The Eleventh Circuit has found that “conduct done knowingly or with

reckless disregard is sufficient” under § 1324(a)(1)(A)(ii), and that “a specific intent

to violate the law is not required.” United States v. Dominguez, 661 F.3d 1051, 1068,

1070 (11th Cir. 2011). In Dominguez, the Eleventh Circuit determined that an

element of the offense is that the defendant “transported the aliens within the

13

United States to further their unlawful presence.” Id. at 1061 (alterations omitted).

As to this element, the court examined whether the defendant’s conduct actually

“furthered” the noncitizens’ illegal presence. In that case, the court reversed the

defendant’s convictions under § 1324(a)(1)(A)(ii) for insufficiency of evidence,

finding that “a reasonable jury could not find beyond a reasonable doubt that the

defendant transported the aliens from Miami to Los Angeles in order to further

their illegal status.” Id. at 1062 (alterations omitted). The court was persuaded by

evidence showing the noncitizens “were taken to an experienced immigration

attorney shortly after arriving in Los Angeles for the purpose of processing [them]

through immigration.” Id. Put differently, it was a defense that the defendant’s

conduct (transportation) helped the noncitizens become lawfully present. See id. It

appears that the Eleventh Circuit’s case law is concerned with whether the

transportation in fact furthered the noncitizens’ unlawful presence or whether it did

the opposite, that is, helped them to become (or obtain documentation to be)

lawfully present. See id.

As to the mens rea, the court in Dominguez found that “’knowingly’ merely

requires proof of knowledge of facts that constitute the offense.” Dominguez, 661

F.3d at 1068 (citation omitted). In subsequent cases, the Eleventh Circuit provided

additional clarification that the “defendant need not know that the act is illegal or

wrong.” United States v. Kendrick, 682 F.3d 974, 984 (11th Cir. 2012) (discussing

Dominguez). It is sufficient that the defendant “knowingly brought an alien to the

United States” and that he “knew or recklessly disregarded the fact that the alien

14

had not received prior official authorization to come to or enter the United States.”

Id. 1 In Kendrick, the Eleventh Circuit upheld a challenge for insufficiency of

evidence where the jury heard the defendant’s “prior sworn testimony that he knew

that he was going to be bringing back an illegal alien” and a Coast Guard officer’s

testimony that the defendant “fled from her vessel despite her repeated hails.” Id. at

985. Under these circumstances, “the jury could have drawn the reasonable

inference that [the defendant] would not have fled from the Coast Guard if he did

not believe that he was doing something illegal.” Id. So, while knowledge of doing

something illegal is not required for conviction in the Eleventh Circuit, it was

sufficient to establish the element that the defendant “knowingly brought [or

transported] an alien to the United States.” See id. at 984, 985.

D.

In the First, Third, Eighth, and Tenth Circuits, the defendant

must have acted “willfully” in furtherance of a violation of

immigration law.

At least four circuits hold that a defendant must act “willfully” in furtherance

of a violation of immigration law. However, they each appear to have a different

interpretation of that term.

The Third Circuit has held that “[t]o sustain a conviction under [§

1324(a)(1)(A)(ii)], the government must prove that ... the defendant acted willfully

in furtherance of the alien’s violation of law.” United States v. Silveus, 542 F.3d 993,

1 Though the statute of conviction is § 1324(a)(1)(A)(ii) for transportation, the

Kendrick opinion incorrectly describes it at points as an offense for “bringing or

attempting to bring an alien into the United States,” which corresponds with §

1324(a)(1)(A)(i). Id. at 978. See also Government’s Brief, Dkt. 11-12620 (11th Cir.

2011 WL 532114 (11th Cir.) (correctly describing the offense more generally as

“alien smuggling” under § 1324(a)(1)(A)(ii).)

15

1002 (3d Cir. 2008). In a challenge for insufficiency of evidence, the court

determined that the evidence showed that the defendants “transported the illegal

aliens not as a friendly gesture, but rather to develop their client base” in their

business “filing asylum papers and translating for Haitian aliens.” Id. at 1003. The

Third Circuit thus concluded that the evidence supported a finding that the

defendant “acted with the intent to further [the aliens’] illegal presence in the

United States.” Id. at 1003.

The First Circuit also requires that the defendant have “acted willfully in

furtherance of the alien’s illegal presence in the United States” for a conviction

under § 1324(a)(1)(A)(ii). United States v. Guerra-Garcia, 336 F.3d 19, 23 (1st Cir.

2003). To establish that “the defendant acted willfully in furtherance of the alien’s

presence in the United States,” the First Circuit found that “there must be a direct

and substantial relationship between the transportation and its furtherance of the

alien’s presence in the United States.” United States v. Medina-Garcia, 918 F.2d 4,

8 (1st Cir. 1990). The court explained that the “[w]illful transportation of illegal

aliens is not, per se, a violation of the statute, for the law proscribes such conduct

only when it is in furtherance of the alien’s unlawful presence.” Id. Put differently,

“to have been acting in furtherance of [the alien’s] violation of law, the defendant

must have “move[d]” the noncitizen “within the United States in aid of his initial

illegal entry.” Id. But the court has not provided a clear statement as to the

meaning of the word “willfully” in this context. See, e.g., Guerra-Garcia, 336 F.3d

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19, 23-25 (1st Cir. 2003) (not explaining what “willfully” means where the defendant

must have “acted willfully in furtherance of the alien’s illegal presence”).

The Eighth Circuit also requires that the “defendant acted willfully in

furtherance of the alien’s violation of law.” United States v. Hernandez, 913 F.2d

568, 569 (8th Cir. 1990); see also United States v. 1982 Chevrolet Crew-Cab Truck,

810 F.2d 178, 181 (8th Cir. 1987) (using identical language). However, the Eighth

Circuit has rejected the argument that “the government must prove that the

defendant transported an alien with the purpose of supporting or promoting his or

her illegal presence.” United States v. Velasquez-Cruz, 929 F.2d 420, 422 (8th Cir.

1991). In that case, the court affirmed based on a finding that “there was evidence

before the jury from the testimony of [the aliens] ... from which the jury could infer

that [the defendant’s] driving of the illegal aliens when she was apprehended in

Arkansas was more than merely ‘incidental’ to the presence of those illegal aliens in

the United States.” Id. at 423 (alterations in original). The Eighth Circuit cautioned

that “courts must distinguish between ‘surreptitious or furtive transportation of

undocumented aliens which inhibits government enforcement of immigration laws

and more attenuated incidents involving minimal employment-related

transportation.’” Id. at 424 (quoting United States v. One 1982 Toyota SR 5 Pick-Up

Truck, 642 F.Supp 335, 337 (N.D. Ill. 1986). It appears that, in the Eighth Circuit,

“willfully” in this context requires that the transportation be “more than merely

incidental” to the unauthorized immigrants’ presence in the country. See id. at 423.

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And still another circuit, the Tenth Circuit also requires that the “defendant

acted willfully in furtherance of the alien’s violation of law.” United States v.

Barajas-Chavez, 162 F.3d 1285, 1288 (10th Cir. 1999) (en banc). The Tenth Circuit

sitting en banc held that the “statute requires [1] that a defendant know or act in

reckless disregard of the fact that an individual is an illegal alien, and [2] that

defendant’s transportation or movement of the alien will help, advance, or promote

the alien’s illegal entry or continued illegal presence in the United States.” Id. at

1288. The second element does not contain an intent but rather concerns whether

the defendant’s conduct actually “help[ed]” the noncitizen’s “continued illegal

presence.” See id. But the court “reject[ed] the use of any particular ‘test’ or ‘formula

for determining whether the ‘in furtherance of’ requirement has been satisfied,”

thereby leaving some ambiguity as the elements of the offense. Id. at 1289.

The Tenth Circuit appears to focus on whether the defendant’s conduct

actually “help[ed] the noncitizen to “continue[] [their] their illegal presence in the

United States.” United States v. De La Cruz, 703 F.3d 1193, 1199 (10th Cir. 2013).

In United States v. De La Cruz, the Tenth Circuit found that where “the driver was

dropping off [the noncitizen passenger] to work at the truck wash,” which was “a job

he already had,” the defendant’s conduct was not “in any way furthering [the

passenger’s] unlawful presence in the country.” Id. at 1199. Instead, the conduct

was “just an ordinary social interaction that occurs every day between family,

friends, and acquaintances” and was not criminalized under § 1324(a)(1)(A)(ii). Id.

The court explained that:

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§ 1324(a)(1)(A)(ii) proscribes, for example, transportation of an alien by

friends or family to enable the illegal alien to find work and/or evade

authorities. But § 1324(a)(1)(A)(ii) ‘does not encompass persons who come

into daily contact with undocumented aliens and who, with no evil or

criminal intent, intermingle with illegal aliens socially and otherwise.

Id. (quoting Barajas–Chavez, 162 F.3d at 1288). The Tenth Circuit’s analysis

focused, not on the defendant’s intent, but on whether his conduct actually helped

the passenger to remain in the United States illegally, such as by evading

immigration authorities. See id. (“Transportation furthers an alien's violation of the

law if it ‘will help, advance, or promote the alien's illegal entry or continued illegal

presence in the United States.’”) (quoting Barajas–Chavez, 162 F.3d at 1288.)

E.

The Ninth Circuit has taken inconsistent approaches.

The Ninth Circuit has taken inconsistent approaches to the elements of the

offense. The Ninth Circuit has held that, to be convicted of § 1324(a)(1)(A)(ii), the

defendant must have “intended to help the alien remain in the United States

illegally.” United States v. Barajas-Montiel, 185 F.3d 947, 954 (9th Cir. 1999).

Accordingly, the court approved of an instruction that “the defendant knowingly

transported or moved or attempted to transport or move the alien in order to help

the alien remain in the United States illegally.” Id. (emphasis added).

But the Ninth Circuit’s current model instruction, which was used in Mr.

Granillo’s trial, on its face, does not require an intent or purpose to violate the law.

The instruction simply requires that the “defendant knowingly transported or

moved the alien to help him remain in the United States illegally.” See Ninth

Circuit Model Criminal Jury Instruction 7.2 (Alien—Illegal Transportation or

Attempted Transportation (8 U.S.C. § 1324(a)(1)(A)(ii)), available at:

19

https://www.ce9.uscourts.gov/jury-instructions/node/912. This instruction is missing

the phrase “in order to,” which is present in the instruction approved of in BarajasMontiel.

The Ninth Circuit’s omission of “in order to” matters. The phrase “in order to”

is used to “express the aim or purpose of doing something.” In order to do something,

CAMBRIDGE’S ENGLISH GRAMMAR, https://dictionary.cambridge.org/us/dictionary/

english/in-order-to. Thus, by omitting the “in order to” language from its model

instruction, the Ninth Circuit changed the mens rea from an intent “to help” to mere

knowledge that the transportation would “help.”

In other words, the model instruction’s omission of “in order to” allows for a

conviction if the defendant simply “knowingly” helped the noncitizen remain in

United States illegally. And in the § 1324(a)(1)(A)(ii) context, the “difference

between purpose and knowledge matters” because “a purposeful mental state …

help[s] separate criminal conduct from innocent behavior.” Borden v. United States,

593 U.S. 420, 426 n.3 (2021); see also Barajas-Montiel, 185 F.3d at 953 (“Without a

specific intent instruction, the jury does not have to consider whether a defendant

intended to violate immigration laws, and therefore the jury could conceivably

believe that they had to convict … where the defendant conceded his involvement in

performing the act of [noncitizen] smuggling but had plausible claims that he

nevertheless lacked the intent to violate the law.”).

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II.

The division among the circuits demands this Court’s attention.

The question presented is highly consequential. The Government prosecutes

thousands of so-called “alien smuggling” cases every year. 2 While the number of

illegal reentry prosecutions fluctuates significantly year by year, the number of

felony “alien smuggling” prosecutions has steadily risen over the past decade. 3 The

people prosecuted are as young as teenagers, while many others are elderly. 4 And

each defendant faces up to five years in prison per passenger, per count.

The possible reach of this statute is even greater. Unauthorized immigrants

are “transported or moved” within the United States every day, and their

transportation could support a criminal conviction for their drivers under §

1324(a)(1)(A)(ii). An estimated 14 million unauthorized immigrants live in the

United States. 5 In most states, people without lawful immigration status cannot

obtain a driver’s license, 6 and must rely on other people (family, friends, bus

drivers, etc.) to help them get to work or school, all within the United States.

2 See U.S. Sentencing Commission, 2023 Sourcebook of Federal Sentencing

Statistics, https://www.ussc.gov/sites/default/files/pdf/research-andpublications/annual-reports-and-sourcebooks/2023/Immigration-OffensesSection.pdf (showing nearly 5,000 individuals were sentenced in “alien smuggling”

cases under U.S.S.G. § 2L1.1 during Fiscal Year 2023).

3 See id. (Figure I-2, Number of Immigration Cases Over Time: Fiscal year 20142023).

4 See id. (Table I-3, Age of Sentenced Individuals in Immigration Cases, Fiscal Year

2023).

5 See Pew Research Center, U.S. Unauthorized Immigrant Population Reached a

Record 14 million in 2023 (Aug. 21, 2025), https://www.pewresearch.org/race-andethnicity/2025/08/21/u-s-unauthorized-immigrant-population-reached-a-record-14million-in-2023/.

6 See National Conference of State Legislatures, Brief: States Offering Driver’s

Licenses to Immigrants (March 13, 2023), https://www.ncsl.org/immigration/statesoffering-drivers-licenses-to-immigrants

21

Family and friends of undocumented people need clarification of when and

whether driving someone they know to be illegally in the United States is a crime.

It is unclear whether a friend who drives a homeless, undocumented person to a

shelter would be criminally liable. It is also unclear whether a Good Samaritan who

gives an undocumented person a ride to a hospital for life-saving care would be

criminally liable since, on a practical level, that transportation would help that

person to remain in the United States illegally. And the friend or Good Samaritan

would fare differently depending on where they live in the country.

People prosecuted for driving their undocumented neighbors to work have

faced different consequences in different parts of the country, even where their

conduct and relevant knowledge were the same. People who help transport

undocumented people as a part of their employment (for example, people who drive

taxis, rideshare vehicles, or buses) have also fared differently in different circuits.

All these individuals deserve to know when their transportation of undocumented

people is punishable as a felony.

At bottom, criminal liability should not change based on which part of the

country the transportation takes place in. Conduct that is innocent in Illinois and

Massachusetts is a felony punishable by five years in prison in Texas and perhaps

also California. This Court’s intervention is needed to ensure an evenhanded and

fair application of this commonly prosecuted immigration offense nationwide.

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III.

Mr. Granillo’s case presents the right vehicle to resolve this circuit

split.

This petition presents an appropriate vehicle to determine the essential

elements of § 1324(a)(1)(A)(ii) and to resolve whether the statute requires a specific

intent to violate immigration law. The question presented was expressly preserved

and ruled upon at Mr. Granillo’s trial and on appeal, is outcome determinative, and

is ripe for review.

At trial, Mr. Granillo proposed an instruction that “the defendant acted with

the intent to violate the United States immigration laws by assisting [the

passenger] to enter the United States illegally.” The district court declined and

instead read the Ninth Circuit’s model instruction without modification. That

instruction provided, in relevant part, that “the defendant knowingly attempted to

transport or move [the alien] to help him remain in the United States illegally.”

The Ninth Circuit’s prior model instruction, which the court approved of in

Barajas-Montiel, required that the defendant “knowingly transported or moved or

attempted to transport or move [the alien] in order to help him remain in the

United States illegally.” 185 F.3d 947, 954 (9th Cir. 1999). But the model

instruction in effect today and read at Mr. Granillo’s trial omitted the phrase “in

order to,” merely requiring that the defendant’s transportation have been

“knowingly” done. This is significant because the use of the phrase “in order to”

“contemplate[s] that the defendant must not merely engage in conduct knowingly,

but purposefully and intentionally.” United States v. Fei Lin, 139 F.3d 1303, 1306

(9th Cir. 1998). The model instruction given at Mr. Granillo’s trial also did not

23

include any other synonym for “purpose” or “intent,” thereby omitting what the

Ninth Circuit previously stated is an element of the crime.

There is good reason to believe that an instruction requiring a mens rea of

purpose or intent would have resulted in a different outcome. The evidence

presented at trial showed Mr. Granillo crossed the border several mornings a week

to run errands, such as buying groceries and checking his mailbox. The jury could

have determined that Mr. Granillo was simply running errands that morning and

did not realize his passenger was not a citizen until he reached the inspection booth.

Indeed, during deliberations the jury asked whether the instruction required Mr.

Granillo to “know” that the passenger “was a [noncitizen] prior to the imposter

check” at the inspection booth.

A jury instructed on intent could have also found that Mr. Granillo knew that

going through with the inspection would help his passenger travel within the

United States illegally but still found him not guilty. For instance, the jury could

have found that Mr. Granillo’s purpose was simply to get through the inspection so

he could run his errands, not to violate immigration law.

Finally, the question presented is ripe for resolution. The split between courts

of appeal on this question dates back at least 25 years. Almost all courts of appeal

have weighed in on this question. But the courts’ disagreements and divisions have

become more complex and varied over time. The development of the case law and

varying perspectives would aid this Court in determining a fair and appropriate

24

resolution. If this Court does not intervene, it seems inevitable that the case law

would continue to develop without an eye towards national uniformity.

IV.

This Court should find that § 1324(a)(1)(A)(ii) requires an intentional

or purposeful mens rea, as the Fifth Circuit and Sixth Circuit have

long held.

The Court should resolve this national problem by adopting the approach

taken by the Fifth Circuit and the Sixth Circuit. Those courts appropriately require

that the defendant have the “purpose” or “intent” to violate the law or to further a

violation of law. These circuits have determined that “intent” or “purpose” is

necessary to give effect to the “in furtherance” language Congress placed in the

statute. Specifically, “in adopting the language ‘transportation ... in furtherance of

such violation of law’ Congress placed a specific qualification on the type of

transportation activity it meant to prohibit.” United States v. 1982 Ford Pick-Up,

873 F.2d 947, 950 (6th Cir. 1989) (quotations omitted). And a “broader

interpretation, … one that would prohibit the mere transportation of a known

illegal alien, would render the qualification placed there by Congress a nullity.”

United States v. Merkt, 764 F.2d 266, 271 (5th Cir. 1985) (quotations omitted).

This approach would limit criminal liability to people who actually intend to

circumvent immigration law, such as people who are paid to transport noncitizens

with the purpose of helping them evade detection by immigration authorities. 1982

Ford Pick-Up, 873 F.2d at 951 (requiring the defendant to have “the purpose of

supporting or promoting [the noncitizen’s] illegal presence”). The “intent” or

“purpose” approach “provide[s] a way of distinguishing those who support ... a

smuggling operation or some other form of illicit transportation from those

25

‘American citizens who come into daily contact with undocumented aliens and who,

with no evil or criminal intent, intermingle with them socially or otherwise.” Id. at

950. “A strong scienter requirement helps reduce the risk of ‘overdeterrence,’ i.e.,

punishing conduct that lies close to, but on the permissible side of, the criminal

line.” Ruan v. United States, 597 U.S. 450, 459 (2022); see also United States v.

United States Gypsum Company, 438 U.S. 422, 441 (1978) (“The imposition of

criminal liability ... without inquiring into the intent with which it was undertaken,

holds out the distinct possibility of overdeterrence.”) This approach would leave no

doubt that people driving friends and neighbors to work or Good Samaritans driving

people in need to the hospital or a shelter are not criminally liable for this federal

felony offense. See 1982 Ford Pick-Up, 873 F.2d at 951 (observing that the “purpose”

approach can “distinguish between someone who smuggles aliens across the country

from someone who knowingly gives an illegal alien a ride to a shelter”).

This interpretation would also bring needed uniformity to the interpretation

of the four alien smuggling offenses under § 1324(a)(1)(A). There is a national

consensus that the other three offenses, involving bringing undocumented people to

the United States, harboring undocumented people, and encouraging people to

violate immigration law, all require a specific intent. See e.g., United States v.

Hansen, 599 U.S. 762, 766, 781 (2023) (finding that § 1324(a)(1)(A)(iv) requires a

“purposeful” or “intentional” mens rea). Clarifying the mens rea requirement for §

1324(a)(1)(A)(ii) would promote a more even-handed application of the law. And it

26

would ensure that people have clarity about what kind of transportation or action

would subject them to criminal liability.

CONCLUSION

For these reasons, this Court should grant the petition for a writ of certiorari.

Respectfully submitted,

s/ Veronica Portillo-Heap

Dated: January 26, 2026

Veronica Portillo-Heap

Federal Defenders of San Diego, Inc.

225 Broadway, Suite 900

San Diego, California 92101-5008

Telephone: (619) 234-8467

Attorneys for Petitioner

27

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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