United States v. Luis Farias-Arroyo

This is an appeal from a judgment of conviction for violation of 8 U.S.C. § 1326 proscribing the presence in the United States of an alien “who has been arrested and deported,” unless he first obtains permission from the Attorney General to re-enter.

The only significant question we face is whether the government proved, as the statute requires, that appellant was “arrested and deported.” The facts are these:

Appellant was discovered illegally in this country in October of 1973. An order to appear and show cause why he should not be deported was issued, and a deportation hearing was held on January 30, 1974. Appellant was found deportable. A warrant of deportation (Form 1-205) was issued, and appellant was notified thereof. On March 19, 1974, appellant voluntarily presented himself to immigration officials at the Mexican border, turned over to them the deportation letter served on him (Form 1-166), and left the country. He was thereafter found in this country in January of 1975.

Throughout the proceedings brought to deport him, appellant was never physically detained in custody, and he now contends he was never “arrested.” We follow the Fifth Circuit, for the reasons…