Alien Not “Found In” United States By State Officer Not Specifically Selected to Enforce Immigration Laws

 US v. Alas: Alas was born in El Salvador and came to the United States, without permission, in 2004. In 2007, he was convicted in Virginia of malicious wounding. In 2011, after serving his sentence in that case, he was presented with a form that said because of that conviction he was deportable. He signed the form, waiving his right to judicial review, and was returned to El Salvador. Sometime later, he returned to the United States (again without permission). In April 2016, he was hospitalized after an assault by his employer when he was interviewed by a sheriff’s deputy, to whom Alas admitted his immigration status (as an explanation for not reporting prior assault). The deputy, who was not specifically designated as someone who could enforce immigration laws even though some other members of his force were, told Alas he would not report him. Four years later, Alas was charged with assault and battery in Virginia, leading to him being charged with illegal reentry in May 2021. He pleaded guilty to that offense after the district court denied his motion to dismiss the indictment against him.  

On appeal, the Fourth Circuit affirmed the denial of Alas’ motion to dismiss. First, Alas had argued that he had been “found in” the United States in 2016 when he was interviewed by the deputy, making his 2021 indictment outside the five-year statute of limitations. The court disagreed, holding that, as a general rule, state authorities cannot enforce immigration law and thus cannot “find” anyone under the illegal reentry statute. A limited statutory exception exists for specifically identified members of state law enforcement organizations who are trained and entrusted with such enforcement. Although the deputy’s department was one such organization, he was not one of those particular officers, so he did not “find” Alas in 2016. Second, Alas had argued that malicious wounding was not an “aggravated felony” that could be a basis for removal. The court rejected that argument, holding that Fourth Circuit law had specifically held that offense to be an aggravated felony in 2011 and that it continued to be so in 2023.