Metropolitan News-Enterprise


Friday, January 8, 2021


Page 3


Ninth Circuit:

Deported Alien Who Reenters U.S. Legally, but Stays Too Long, Commits ‘Unlawful Reentry’ 


By a MetNews Staff Writer


An alien who is deported and is allowed to return to the United States for a limited purpose, and remains here once that purpose no longer exists, is guilty of an illegal “reentry,” the Ninth U.S. Circuit Court of Appeals has held.

The appellant, Allan Altamirano Trejo, was deported in 2004, but returned to the United States that same year. He contended, in contesting a 2019 deportation order based on an illegal reentry, that he lawfully returned, having been “paroled” back to the U.S.

(The Ninth Circuit explained in its 1996 opinion in Barney v. Rogers that “parole” is “the legal fiction whereby an alien is allowed to be physically present in the United States for a specific purpose.”)

A three-judge panel said in a memorandum opinion on Wednesday that it seemed doubtful that Trejo had been paroled here in light of his lack of substantiation for the assertion, but that, in any event, that would not aid him, explaining:

“Even assuming Altamirano had been paroled to return pending adjudication of his adjustment of status application, that request was denied on August 30. 2004, at which point his parole would have expired….Altamirano nonetheless remained in the United States for the next fifteen years. By overstaying his parole in such an egregious manner, Altamirano effectuated an illegal reentry.”

In support of that proposition, the panel cited the Ninth Circuit’s 2003 opinion in United States v. Pina-Jaime. However, the panel there did not say that remaining in the United States past the time limit that had been set rendered the reentry unlawful; rather it said that where there was a lawful reentry, but the alien remained past the time provided, the person could be convicted of being an alien “found in” the U.S. without permission to be here.

The opinion—signed by Circuit Judges Danielle J. Hunsaker and Johnnie B. Rawlinson, joined by District Court Senior Judge Morrison C. England Jr. of the Eastern District of California, sitting by designation—comes in Trejo v. Rosen, 19-72462.


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