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Abstract

Illegal reentry into the United States by previously removed aliens is a major problem that has risen steadily in recent years. 8 U.S.C. § 1326(a) punishes such aliens. Specifically, § 1326(a) provides for criminal fines or imprisonment (or both) of any previously removed alien who enters, attempts to enter, or is “found in” the United States at any time after his or her initial removal.

What does it mean to be “found in” the United States in violation of § 1326(a)? The easy case is when a previously removed alien surreptitiously reenters the United States illegally, remains in the United States undetected for some time, and is then physically found by U.S. officials within the country’s borders. But, what happens when a previously removed alien surreptitiously reenters the United States illegally and remains undetected by U.S. officials until that alien subsequently attempts to leave the country and is involuntarily returned to the United States by foreign officials after physically crossing into that foreign territory? Should these aliens be considered “found in” the United States?

The Ninth Circuit has answered this question in the affirmative twice, while the Second Circuit has declined to consider such aliens to be “found in” the United States in violation of § 1326(a). This Note argues that the federal courts should adopt the Second Circuit’s holding for numerous legal and policy reasons that are consistent with major U.S. Supreme Court and circuit court decisions that have shaped U.S. immigration law since the beginning of the twentieth century.

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