NOT FOR PUBLICATION FILED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

2 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.

3 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—

4 “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

5 the 5-year statute of limitations. There was no error in denying the motion to

dismiss the indictment.

AFFIRMED.

6