Rosario Vazquez-Hernandez was charged with attempted illegal re-entry. Vazquez-Hernandez frequently entered the pre-inspection area of a U.S. border crossing so he could wash windows. The Government contended that his presence in the pre-inspection area constituted a criminal offense because Vazquez-Hernandez had been previously deported. The Ninth Circuit disagreed.

“To convict a defendant of attempted illegal reentry, the Government must prove beyond a reasonable doubt that the defendant crossed into the United States with the specific intent to enter the country free from official restraint,” the Ninth Circuit wrote.

Vazquez-Hernandez could not be convicted of attempted illegal re-entry based on his presence in the pre-inspection area, the Ninth Circuit concluded, because he was not free from “official restraint” in the pre-inspection area.

“The official restraint doctrine was intended to safeguard the presence of uninspected immigrants in precisely the type of area in to which Vazquez-Hernandez entered and where he remained. The freedom from official restraint requirement addresses the practical concern that failing to require such a finding would lead to the criminalization of individuals who arrive at a port of entry but have not yet had an opportunity to apply for inspection,” the court explained.

Vazquez-Hernandez was also not free from official restraint because he was “in an area that [wa]s subject to constant government surveillance,” the court wrote. “Here, the government’s witnesses testified that the pre-inspection area was subject to surveillance by hundreds of cameras, with small blind spots, and was surrounded on all sides either by walls or law enforcement agents.”

The court also held that “there is no doubt in this case that Vazquez-Hernandez was not free to travel at will beyond the points of inspection. The area was largely walled off from U.S. territory not subject to such surveillance and monitored by Border Patrol agents who attempted to stop individuals from proceeding into the United States without inspection. Therefore, given this evidence on the conditions of the pre-inspection area, no rational jury could have concluded beyond a reasonable doubt that Vazquez-Hernandez was free from official restraint in this area, or that he intended to be by entering it.”

The court also found that there was insufficient evidence that Vazquez-Hernandez “intended to go beyond the pre-inspection area so as to be free to go at large and at will within the United States.”

His conviction for attempted illegal re-entry was accordingly reversed. See: United States v. Vazquez-Hernandez, No. 15-10009 (9th Cir. 2017)


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