United States v. Xian Long Yao

MEMORANDUM *

Defendant-Appellant Xian Long Yao appeals his conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326 (a). Two years after Defendant was removed to China, he illegally reentered Guam, via Saipan.

Defendant sought to present a defense of necessity, stating that he fled China due to a fear of persecution by the Chinese government for violating its one-child policy. The district court refused to allow the defense, and we affirm. Before being allowed to present a necessity defense, the defendant bears the burden of submitting evidence permitting a conclusion that when he took the illegal action: “(1) [ ] he was faced with a choice of evils and chose the lesser evil; (2)[ ] he acted to prevent imminent harm; (3)[ ] he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and (4)[ ] there were no other legal alternatives to violating the law.” United States v. Arellano-Rivera, 244 F.3d 1119, 1125-26 (9th Cir.2001) (quoting United States v. Aguilar, 883 F.2d 662, 693 (9th Cir.1989)). Defendant has not carried that burden. He failed to establish that there were no lawful alternatives to reentering Guam illegally.…