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Keywords

defendantattorneystatutevisadeportationliens

defendantattorneystatuteappealvisadeportation

Related Cases

Bernal-Gallegos; U.S. v.

Facts

Defendant, a Mexican citizen, was arrested and deported from the United States on February 7, 1974. On July 17, 1983, he was found in the country unlawfully, without any documents authorizing his presence and without having obtained the consent of the Attorney General to enter the country. He was indicted and convicted for illegal reentry into the United States, in violation of 8 U.S.C. 1326, and received a two-year sentence with six months to be served.

On February 7, 1974, Bernal-Gallegos, a Mexican citizen, was arrested and deported from the United States. Thereafter, on July 17, 1983, he was found in this country unlawfully, without any documents authorizing his presence and without having obtained the consent of the Attorney General to enter the country.

Issue

Whether the amendment to the civil statute, 8 U.S.C.S. 1182(a)(17), which allows an alien to be admitted if deportation occurred more than five years prior to reentry, modifies the criminal statute, 8 U.S.C.S. 1326.

On appeal, Bernal-Gallegos contends that when Congress amended the civil statute, Title 8, U.S.C. 1182(a)(17), an alien was no longer excluded from admission into the United States if his deportation occurred more than five years prior to his reentry.

Rule

8 U.S.C. 1182(a)(17) is a civil statute governing the provision of visas and does not modify the provisions of 8 U.S.C. 1326, which is a criminal statute intended to punish previously deported aliens found in the country unlawfully.

Section 1182(a)(17) is a civil statute governing the provision of visas; its legislative history does not reveal an intent to amend the provisions of 1326.

Analysis

The court concluded that the civil statute, 8 U.S.C. 1182(a)(17), does not affect the criminal statute, 8 U.S.C. 1326. The court reasoned that even though the defendant would have been eligible for a visa had he applied for one, his failure to obtain a visa or permission from the Attorney General meant he was properly convicted for reentry without a visa.

If, in this case defendant had obtained a visa, he would have been in the country lawfully and not subject to conviction under 1326. He neither obtained a visa nor received the permission of the Attorney General to enter and he was therefore properly convicted of violating 8 U.S.C. 1326.

Conclusion

The court affirmed defendant's conviction. The defendant's eligibility for a visa did not render void his criminal conviction for reentry without a visa.

AFFIRMED.

Who won?

The United States prevailed in the case because the court upheld the conviction, finding that the defendant's failure to obtain a visa or permission from the Attorney General justified the conviction under 8 U.S.C. 1326.

The court held that 1182(a)(17) does not modify 1326 and that Bernal-Gallegos was properly convicted of violating 1326.

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