United States v. Gumesindo Mendoza-Moreno

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 31 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10202
Plaintiff-Appellee, D.C. No.
1:16-cr-00139-LJO-SKO-1
v.
GUMESINDO MENDOZA-MORENO, MEMORANDUM*
AKA Guminsindo Moreno-Mendoza,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O'Neill, District Judge, Presiding
Argued and Submitted May 15, 2019
San Francisco, California
Before: McKEOWN and GOULD, Circuit Judges, and LASNIK,** District Judge.
On September 1, 2016, Gumesindo Mendoza-Moreno was indicted on one
count of being “found in” the United States in violation of 8 U.S.C. § 1326.
Mendoza-Moreno moved to dismiss the indictment as barred by the statute of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
limitations, and the district court denied the motion. Mendoza-Moreno pled guilty
to the offense but reserved the right to appeal the district court’s denial of the
motion to dismiss. That challenge is the subject of this appeal. We assume the
parties’ familiarity with the facts and do not recite them here. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
The statute of limitations for offenses under 8 U.S.C. § 1326 is 5 years. 18
U.S.C. § 3282. The statute of limitations begins to run when “an alien is
discovered and identified by the immigration authorities.” United States v.
Hernandez, 189 F.3d 785, 791 (9th Cir. 1999). The “found in” element has two
prongs: (1) immigration officials must know of the defendant’s presence in the
United States (presence), and (2) immigration officials must know that the
defendant’s presence is unlawful (status). See United States v. Rivera-Ventura, 72
F.3d 277, 281–82 (2d Cir. 1995).
The federal circuit courts of appeals are divided on whether the status prong
of the “found in” analysis requires actual, or merely constructive, knowledge of the
defendant’s unlawful presence. Compare United States v. Gomez, 38 F.3d 1031,
1036–37 (8th Cir. 1994), with United States v. Are, 498 F.3d 460, 462 (7th Cir.
2007). We have not yet decided the issue. Mendoza-Moreno urges us to join the
majority of circuits to consider the issue and hold that the status prong of the
“found in” element is met when immigration officials knew or, “with the exercise
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of diligence typical of law enforcement authorities could have discovered, the
illegality of [the defendant’s] presence.” Rivera-Ventura, 72 F.3d at 281–82; see
also United States v. Clarke, 312 F.3d 1343, 1347–48 (11th Cir. 2002); United
States v. Bencomo-Castillo, 176 F.3d 1300, 1303–04 (10th Cir. 1999); United
States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996); Gomez, 38 F.3d at
1035–37. We decline to weigh in on the circuit split because, under either test, the
outcome in this case would be the same: Mendoza-Moreno cannot show that
immigration officials actually knew or reasonably should have known that he was
unlawfully present before 2015.
Under the actual knowledge standard, immigration officials did not discover
Mendoza-Moreno’s unlawful presence until 2015. United States Citizenship and
Immigration Services (“USCIS”) officers did not uncover Mendoza-Moreno’s
prior deportation records when in 2006 they searched for “Gumesindo Mendoza-
Moreno”—the name given on Mendoza-Moreno’s brother’s I-130 petition.
Instead, USCIS first became aware of Mendoza-Moreno’s prior deportation, and
unlawful status, only when they searched their database in 2015 using the name
given on Mendoza-Moreno’s daughter’s I-130 petition—“Gumersindo Mendoza-
Moreno.” Under this analysis, the statute of limitations did not begin to run until
2015, and the 2016 indictment was timely.
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Even applying a constructive knowledge standard, Mendoza-Moreno cannot
show that immigration officials, with the exercise of reasonable diligence, should
have found him before 2015. Under the constructive knowledge standard, a
defendant is “found in” the United States when “immigration authorities should
have, through the exercise of reasonable diligence, discovered” that the
defendant’s presence was unlawful. Gomez, 38 F.3d at 1038. But “[w]hat
constitutes reasonable diligence . . . var[ies] with the facts and circumstances of
each case.” United States v. Palomino Garcia, 606 F.3d 1317, 1323 (11th Cir.
2010).
Here, the record shows that USCIS officers followed standard procedure
when they reviewed Mendoza-Moreno’s brother’s I-130 petition in 2006 and there
is nothing in the record to suggest that those procedures were unreasonable or that
the officers were not reasonably diligent. Christine Lee, an Immigration Services
Officer who has worked in the California branch of USCIS since 2005, stated in
her declaration that the standard procedure for reviewing I-130 petitions involves a
background check “on both petitioner and beneficiary using all name and DOB
variations provided by the petitioner in the Form I-130 and supporting evidence.”
USCIS officers searched the Interagency Border Inspection System database in
2006 using the name provided in Mendoza-Moreno’s brother’s I-130 petition—
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“Gumesindo Mendoza-Moreno.” The search did not reveal any matches at all in
the database.
Mendoza-Moreno’s argument that USCIS officers should have conducted a
“sounds like” search is not supported by the record. USCIS officers did conduct a
“sounds like” search in 2015 around the time that their search for the name
provided in Mendoza-Moreno’s daughter’s I-130 petition—“Gumersindo
Mendoza-Moreno”—returned a match. But there is no evidence in the record that
USCIS officials regularly ran “sounds like” searches in 2006, or that it was
standard procedure to run a “sounds like” search when a name did not return any
results in the database. From this record, we cannot conclude that reasonable
diligence required a “sounds like” search in 2006 when the original search revealed
no results.
Because we conclude that immigration officials exercising reasonable
diligence would not have discovered Mendoza-Moreno’s illegal status in 2006,
Mendoza-Moreno was not “found in” the United States for the purposes of § 1326
at that time. Accordingly, even under the constructive knowledge standard, the
statute of limitations on the “found in” offense did not begin to run until 2015,
when agents had the information necessary to discover Mendoza-Moreno’s
unlawful presence through the exercise of reasonable diligence.
The district court correctly concluded that the indictment was filed within
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the 5-year statute of limitations. There was no error in denying the motion to
dismiss the indictment.
AFFIRMED.
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