United States District Court, S.D. California
ODER DENYING DEFENDANT'S MOTION TO
MICHAEL S. BERG U.S. MAGISTRATE JUDGE.
Chavac-Boror is charged in a Superseding Information with
violating 8 U.S.C. § 1325(a)(1) which provides, in
relevant part, that Mr. Chavac-Boror, an alien, knowingly and
intentionally attempted to enter the United States at any
time or place other than as designated by immigration
officers. Defendant moves to dismiss the information on three
grounds: (1) Congress violated the non-delegation doctrine
when it enacted the statute; (2) Section 1325(a)(1) is
impermissibly vague in violation of the Due Process Clause;
and (3) the information fails to allege the required elements
of § 1325(a)(1).
1, section 1 of the United States Constitution provides that
"all legislative powers herein granted shall be vested
in a Congress of the United States." The nondelegation
doctrine generally forbids Congress from delegating to
another branch of government "powers which are strictly
and exclusively legislative." Gundy v. United
States, 139 S.Ct. 2116, 2123 (2019) (quoting Woyman
v. Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825)). But
the Constitution does not "deny[ ] to the Congress the
necessary resources of flexibility and practicality [that
enable it] to perform its function[s]." Id.
(quoting Yakus v. United States, 321 U.S. 414, 425
(1944)). Congress's authority to confer substantial
discretion on executive agencies to implement and enforce the
laws is well established. Mistretta v. United
States, 488 U.S. 361, 373-74 (1989) (collecting cases
where delegation was upheld and noting the Supreme Court has
struck down only two statutes for impermissible delegation
and both occurred in 1935).
generally cannot delegate away the inherently legislative
task of determining what conduct should be punished as a
crime. United States v. Kozminski, 487 U.S. 931, 949
(1988). The Supreme Court has held time and again, however,
that "Congress simply cannot do its job absent an
ability to delegate power under broad general
directives." Gundy, 139 S.Ct. at 2123. Congress
can, therefore, permit an executive-branch official to fill
in the details of a legislative scheme as long as Congress
"lay[s] down by legislative act an intelligible
principle to which the person or body authorized to [exercise
the delegated authority] is directed to conform."
Id. At 2129 (quoting J. W. Hampton, Jr., &
Co. v. United States, 276 U.S. 394, 409 (1928) (brackets
argues that Section 1325(a) violates the nondelegation
doctrine because it permits executive branch officials the
discretion to determine what constitutes a crime under
Section 1325(a). Defendant interprets the statute to permit
any "immigration officer" to designate the times
and locations where entry into the United States is lawful.
Defendant argues that this delegation is improper because
Congress failed to provide any "intelligible
principle" to guide and constrain that exercise of
discretion. The Government opposes arguing that
Defendant's reading of the doctrine is far too broad
because Congress was not required to "spell out"
for the Executive Agency how to determine where and when
ports of entry are open.
Court agrees with the Government's position. Defendant
appears to conflate Congress's purpose in creating
Section 1325(a) and the practical details of its
implementation. Congress determined that there should be a
proper location and procedure for an alien to seek admission
to the United States. See 8 U.S.C. § 1225(a)(3)
(requiring all applicants for admission to be inspected by
immigration officers). Congress also established penalties
for failing to follow those procedures. See 8 U.S.C.
§§ 1321-1330. Section 1325(a) is one such
provision. The details of where and when the ports of entry
would be located was left to the executive agency responsible
for staffing the facilities.
attempts to read into the statute a broader delegation than
actually occurred by arguing that any individual immigration
official can designate any piece of land as a place for
entry. Not so. Congress requires that aliens seeking lawful
entrance to the United States do so at a port of entry.
See United States v. Corrales-Vasquez, 931 F.3d 944,
946 (9th Cir. 2019); United States v. Aldana, 878
F.3d 877, 882 (9th Cir. 2017). Ports of entry can only be
designated or de-designated by the Secretary of Homeland
Security subject to the Administrative Procedures Act.
See 8 C.F.R. § 100.4(a). Ports of entry also
necessarily include facilities, staffed by immigration
officials that are set up to accept applications for
admission. Aldana, 878 F.3d at 882. To interpret
Section 1325(a) to permit a border patrol agent to designate
a portion of the border fence "on a whim" is in
direct conflict with Congress's clear statutory scheme.
support of his argument, Defendant cites the Supreme
Court's decision in Touby. Touby v. United
States, 500 U.S. 160 (1991). At issue there was a
statute that allowed the Attorney General to temporarily
designate a substance as a Schedule 1 Controlled Substance
thereby making possession of that substance illegal.
Id. at 165. The Supreme Court in Touby held
that the delegation was permissible, however, because
Congress provided the Attorney General factors to consider
before designating a new substance. Defendant argues the
delegation at issue in Section 1325(a) is similar, but
Congress provided no guidance as to where ports of entry
should be open and their hours of operation.
Court disagrees that the issue in Touby is similar
to Section 1325(a). In Touby, the Attorney General
had the authority to make the legal possession of a substance
illegal. This is a discretionary act that expands the scope
of criminal conduct under the statute. Legislative guidance
was required. The practical issues of where and when ports of
entry are open does not alter the scope of conduct considered
criminal under Section 1325(a). The type of conduct
prohibited remains the same regardless of what physical piece
of ground a port of entry is on. Setting the location of
ports of entry and hours of operation only affects when and
where an alien may lawfully comply with Congress's
directives. It does not change the scope of conduct that
would subject an alien to criminal liability.
Government cites to the most recent Supreme Court case
dealing with the nondelegation doctrine to offer support for
its position. In Gundy, the Court upheld a
delegation to the Attorney General to determine when it would
be feasible to require sex offenders convicted prior to the
statute's enactment to register. In an analogous
delegation as here, Congress determined that the registration
requirements applied to pre-Act offenders but left the
practical problems of implementation and when pre-Act
offenders would be required to register to the Attorney
Court finds the type of delegation under Section 1325(a) to
be analogous to the delegation in Gundy. Congress
determined that entering the United States outside a port of
entry was prohibited and properly and practically delegated
authority to implement Section 1325(a) to the Executive
Branch, the agency that would be responsible for staffing and
operating the ports of entry. The ...