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UNITED STATES v. HERNANDEZ-GUERRERO

May 1, 1997

UNITED STATES OF AMERICA, Plaintiff,
v.
GUADALUPE HERNANDEZ-GUERRERO, Defendant.



The opinion of the court was delivered by: RHOADES

 This matter comes before the Court on Defendant Hernandez-Guerrero's Motion to Dismiss the Indictment pursuant to Fed. R. Crim. P. 12(b). Defendant Hernandez-Guerrero (hereinafter "Defendant") claims that in enacting 8 U.S.C. § 1326, Congress exceeded its constitutional authority.

 For the reasons stated below, Defendant's Motion is DENIED.

 I. BACKGROUND

 On January 19, 1997, Border Patrol agents arrested Defendant one mile west of Campo, California. Defendant allegedly waived his Miranda rights, and informed the Government that he was a Mexican citizen, who entered the United States illegally on January 19, 1997. The Government claims that Defendant has been deported from the United States seven times, and that he has sustained approximately ten misdemeanor and felony convictions.

 On March 26, 1997, a federal grand jury returned a one-count indictment against Defendant, charging him with a violation of 8 U.S.C. § 1326(a) and § 1326(b)(1).

 II. ANALYSIS

 A. The Court must presume federal statutes to be constitutional.

 Defendant filed the present motion to dismiss the indictment, arguing that Congress exceeded its constitutional authority in enacting 8 U.S.C. § 1326. *fn1"

  The Supreme Court repeatedly has held that "statutes should be construed whenever possible so as to uphold their constitutionality." See, e.g., United States v. Vuitch, 402 U.S. 62, 70, 28 L. Ed. 2d 601, 91 S. Ct. 1294 (1971). In particular, immigration statutes are accorded special deference, and the Court will not nullify an immigration statute unless no rational basis for the statute exists. See Adams v. Howerton, 673 F.2d 1036, 1042 (9th Cir.), citing Hampton v. Mow Sun Wong, 426 U.S. 88, 48 L. Ed. 2d 495, 96 S. Ct. 1895 (1976), cert. denied, 458 U.S. 1111 (1982).

 As described below, there are at least two bases for § 1326's constitutionality. First, Congress has the authority to pass § 1326 as incident to the inherent power of a sovereign nation to regulate immigration. Second, Congress has the power to pass § 1326 as necessary and proper to the exercise of its authority under the Commerce Clause.

 B. Congress has the power to pass § 1326 due to the inherent rights of a sovereign nation.

 Much like Heimdall's control regarding who could enter Asgard, located in the Heavens, across the bifrost bridge, Congress has plenary immigration power to determine who may enter into the United States across its borders. *fn2" See Kleindienst v. Mandel, 408 U.S. 753, 765-67, 33 L. Ed. 2d 683, 92 S. Ct. 2576 (1972)(noting that Congress has plenary control over admission and exclusion of aliens). Indeed, "over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens." Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339, 53 L. Ed. 1013, 29 S. Ct. 671 (1909).

 Defendant concedes that Congress has the power to pass civil legislation to regulate immigration. Defendant contends, however, that Congress does not have the power to pass criminal laws to regulate immigration. Defendant cites no direct authority to support his position, ...


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