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Deported man caught in Niagara not guilty of being 'found in' US

According to the 2nd Circuit Court of Appeals, a certain Honduran man has "checkered immigration history in the United States," but he's not guilty of being "voluntarily present and found in the United States" after deportation or of criminal reentry. In 2012, a federal jury in Buffalo had convicted him of both offenses, which carry potential penalties of two and 20 years in prison, respectively. The 2nd Circuit, however, has just reversed those convictions and ordered him acquitted.

The Honduran man had been deported in 2000 after a drug conviction. Sometime the following year, however, he came back to the U.S., planning to run a legal antique business. Sometime later, he decided to move to Canada. He and a friend traveled up from Texas in January 2012for a planned crossing at the Rainbow Bridge in Niagara Falls.

He had reached the Canadian side of the bridge when officers of the Canada Border Services Agency stopped him and brought him to an inspection facility. He had no passport or visa, and his explanation for traveling to Canada was apparently implausible.

The CBSA agents denied him the right to enter Canada -- and then handcuffed him, hauled him back across the bridge and handed him over to U.S. Customs and Border Protection.

Based on those facts, the 2nd Circuit decided, he could not be said to have been voluntarily in the U.S. They were not at all persuaded when the government pointed out that he had obviously been guilty of voluntary presence after removal at some point since his deportation.

Indeed, the court responded, he surely did violate that law at some point, but "he is not guilty of the crime of which he was convicted."

It may seem odd to acquit him under these circumstances, the court added, but it makes no more sense to punish him "for being 'found in' the United States when he was only 'found' based on his attempt to stop living in the United States unlawfully. This would create a disincentive for undocumented, previously deported aliens to do the one thing that Congress would most like them to do -- leave."

Even after this acquittal, he's still subject to deportation and removal. Nevertheless, his public defenders say he is excited to be reunited with his mother when he is released and sent home.

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