May be of interest:
9th Circuit Court of Appeals:
Quote:
Cupa-Guillen argues that § 1326 violates due process because it punishes solely on the basis of his status as an alien. More specifically, he claims that § 1326 sets forth a strict liability offense which punishes "wholly passive conduct." According to Cupa-Guillen, being subjected to criminal liability for violating *863 a statute unaccompanied by any activity whatever, other than merely being present in the United States, is unconstitutional. He analogizes to Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), where the Supreme Court held that a person cannot be convicted of a crime simply because he has the forbidden status of being a drug addict.
[2] [3] Cupa-Guillen misinterprets § 1326 because the statute does not set forth a status crime. Where an offense is based on an underlying act which society has an interest in preventing, the offense is not a status crime. See United States v. Kidder, 869 F.2d 1328, 1332 (9th Cir.1989). Cupa-Guillen is not being punished simply because he has the status of an alien. Instead, the statute specifically punishes the act of illegally re-entering the United States without permission after having been previously deported and convicted of an aggravated felony. See 8 U.S.C. § 1326(b)(2). [FN3] Cupa-Guillen was convicted and sentenced for his actions in committing two prior aggravated felonies, being deported, then illegally returning to the United States without the permission of the Attorney General. Therefore, because § 1326 requires an affirmative act of re-entry, Cupa-Guillen's mere presence argument fails.
FN3. To obtain a conviction under § 1326(b)(2), the government must prove that: (1) the accused is an alien; and (2) the accused unlawfully re-entered the United States after being deported and convicted of an aggravated felony. See United States v. Gonzalez-Medina, 976 F.2d 570 (9th Cir.1992).
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A mere presence argument fails to include actus reus - the act of illegal entry. Sure, it's legalese and completely contrary to common sense, but the way I understand that the law is set up, you can't say someone is guilty of
crossing the border illegally just because they're
in the country illegally.