Argued: Nov. 14, 2013.
Jayme L. Feldman (Tracey Hayes, on the brief), Federal Public Defender's Office, Western District of New York, Buffalo, NY, for Defendant-Appellant Walter Yovany Vasquez Macias.
Stephan J. Baczynski, Assistant United States Attorney, (Monica Richards, Assistant United States Attorney, on the brief), for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, NY, for Appellee United States of America.
Before: POOLER, RAGGI, AND WESLEY, Circuit Judges.
Judge RAGGI concurs in a separate opinion.
WESLEY, Circuit Judge:
Walter Yovany Vasquez Macias (" Vasquez" ) is a citizen of Honduras with a checkered immigration history in the United States. He was detained in California in 1990, left voluntarily, illegally reentered the country, and then sold drugs to at least two undercover officers in the late 1990s (leading to one criminal conviction and deportation in 2000). Vasquez again returned to the United States without authorization in approximately 2001;  he claims that he subsequently went straight and entered the antique business.
For reasons not known to us, Vasquez decided to abandon the antique market and leave the United States. With a
friend, he traveled from Texas to Niagara Falls, where they walked across the Rainbow Bridge to Canada. Canada Border Services Agency (" CBSA" ) officers first saw Vasquez on the Canadian side of the bridge as he walked in the car lanes towards Canada; they brought him to their facility for inspection. Vasquez lacked a passport or visa to enter Canada and his explanations about the reasons for his travel were not plausible. A CBSA agent testified that he " refuse[d] [Vasquez's] entry" to Canada. The CBSA supplied Vasquez with an " Allowed to Leave" document, customarily created whenever someone from the United States attempts to enter Canada and is refused entry. Notwithstanding Canada's " allowing" Vasquez's departure, CBSA agents forcibly returned Vasquez to the United States in handcuffs.
CBSA agents handed Vasquez over to U.S. Customs and Border Protection (" CBP" ) officials, who conducted an immigration investigation and records check. The CBP records check revealed that Vasquez was a Honduran citizen who had been asked to leave in 1990 and been deported in 2000 for his felony drug conviction. Vasquez was indicted for being " voluntarily present and found in the United States."  Having been in the United States illegally for approximately ten years, he was convicted based on his failed attempt to begin anew in Canada. After trial, Vasquez renewed, albeit untimely, an earlier motion for a judgment of acquittal, arguing that he was not in the United States when he was found.
The parties agree as to the facts of the case and as to most of the applicable law, but leave it to this Court to determine the meaning of " found in" and whether Vasquez was continuously " in the United States" within the meaning of 8 U.S.C. § 1326. Because Vasquez was not in the United States when he was " found" and, when " found in" the United States, was here involuntarily, Vasquez's conviction was plainly erroneous and it would constitute manifest injustice to allow it to stand.
The Government proposed that the term " found in[ ] the United States" is synonymous with " present in the United States." We have previously rejected this interpretation. " The offense of being ‘ found in’ the United States ... depends not only on the conduct of the alien but also on acts and knowledge of the federal authorities." United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir.1995). " The commission of the offense is not complete ... ‘ until the authorities both discover the illegal alien in the United States, and know, or with the exercise of diligence typical of law enforcement could have discovered,
the illegality of his presence.’ " United States v. Acevedo, 229 F.3d 350, 355 (2d Cir.2000) (alterations omitted) (quoting Rivera-Ventura, 72 F.3d at 282); see also United States v. Williams, 733 F.3d 448, 455 (2d Cir.2013).
The parties also disagree as to when Vasquez was " found in" the United States. The Government contends that, notwithstanding his physical presence north of the Canada / U.S. border, Vasquez never left the United States. Vasquez argues that the first time that he was both " found" and " in[ ] the United States" was upon his forcible return to the custody of U.S. CBP agents. Because Vasquez was not in the United States while he was on Canadian soil seeking admission into Canada, he was not " found in" the United States until the CBSA brought him across the border in restraints and the U.S. CBP " discovered" him.
Prior to this " discovery," Vasquez physically crossed the border from the United States into Canada; at that point, he had neither a legal nor a physical presence in the United States. If found at this point, Vasquez was not " in[ ] the United States" pursuant to the requirements of 8 U.S.C. § 1326. Nevertheless, under similar circumstances the Ninth Circuit has twice held that the aliens were " found in" the United States pursuant to a theory that employed a legal fiction of their continuous presence in the United States after having crossed into Canadian territory. See United States v. Gonzalez-Diaz, 630 F.3d 1239,1243-44 (9th Cir.2011); United States v. Ambriz-Ambriz, 586 F.3d 719, 723-24 (9th Cir.2009). The Ninth Circuit lays out two rationales for its view; neither is persuasive.
First, the Ninth Circuit noted that Ambriz " was never legally in Canada, and thus, ... was not entering the United States from a foreign country." 586 F.3d at 723; see also Gonzalez-Diaz, 630 F.3d at 1244. Two assumptions underlie this analysis: first, for purposes of the statute, physical presence is not synonymous with legal presence; second, Ambriz and Gonzalez-Diaz must have been legally either in Canada or in the United States. We disagree with the second proposition and therefore do not reach the first.
Aliens attempting to enter the United States, stopped in analogous circumstances, are not legally in the United States. See, e.g., United States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir.2000); United States v. Canals-Jimenez, 943 F.2d 1284,1287-88 (11th Cir.1991). However, nothing cited in these cases, Ambriz-Ambriz, Gonzalez-Diaz, or the parties' briefs suggests that ...