Unlawful Transportation of Aliens: Second Circuit Finds Insufficient Evidence of “Furthering” Illegal Presence in the U.S.
United States v. Khalil
U.S. Court of Appeals for the Second Circuit
Decided May 16, 2017
Issue: Whether a defendant can be guilty of transporting an illegal alien “in furtherance of” the alien’s illegal stay in the United States under 8 U.S.C. section 1324(a)(1)(A)(ii) where a defendant facilitates transportation out of the United States for an illegal alien already in the United States.
Holding: The Second Circuit held that there was insufficient evidence to allow a rational trier of fact to find beyond a reasonable doubt, that the Government had proven the element “in furtherance of” in 8 U.S.C. section 1324 (a)(1)(A)(ii) where the defendant assisted in the transportation of an illegal alien already residing in the United States to a country outside the United States.
Facts: Khalil and his brother operated an international passport ring, where they manufactured high-quality identity documents such as passports and drivers licenses and facilitated illegal entry of aliens into the United States and Canada. In 2002, Khalil’s brother, Ahmed, agreed to smuggle a Pakistani man, Rafique, into the United States. Ahmed provided a fake United Kingdom passport for Rafique and arranged travel to New York.
In 2010, Rafique requested Khalil to provide him with a fake British passport so that he could obtain legal status in the United States. Khalil, instead, recommended that Rafique use the passport to travel to and try to obtain legal status in Canada.
When the passport was ready, Khalil picked up Rafique in Queens, drove him to Pennsylvania Station in Manhattan, and bought Rafique a train to Montreal. On the train, Rafique was arrested by United States Customs and Border Protection officers before reaching the Canadian border.
After trial began, Khalil moved for a judgment of acquittal on each count, but the motion was denied. A jury convicted Khalil of all ten counts of the indictment, including unlawfully transporting an illegal alien within the United States under 8 U.S.C. section 1324(a)(1)(A)(ii).
Analysis: 8 U.S.C. section 1324(a)(1)(A)(ii) provides that the offense of unlawfully transporting an alien within the United States is committed by any person who:
knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law
The District Court charged the jury with respect to the “with furtherance of” element a follows:
[T]he government must prove beyond a reasonable doubt . . . that the defendant acted willfully in furtherance of the aliens violation of law. In order to establish this element, the government must prove that the defendant knowingly and intentionally transported the alien in furtherance of the alien’s unlawful presence in the United States. In other words, the evidence must show a direct and substantial relationship between the transportation and its furtherance of the aliens unlawful presence in the United States. Transportation of an alien unlawfully within the country is not, by itself, a violation of the statute if it is merely incidental to the alien’s presence in the United States, for the law proscribes such conduct only when it is in furtherance of the aliens unlawful presence.
Khalil argued that by driving Rafique to Pennsylvania Station, he did not intend to “further” Rafique’s illegal presence in the United States. In fact, as Khalil argued, his actions were to the contrary of the furtherance of Rafique’s presence in the United States because “the purpose of the transportation was to terminate Rafique’s presence in the United States…”
The Second Circuit agreed with Khalil and held that there was “insufficient evidence to allow a rational trier of fact to find, beyond a reasonable doubt, that the Government had proven this element of the crime as it was explained in the district court’s instructions.” It was undisputed that Khalil drove Rafique to Pennsylvania Station so that he could enter Canada by train and that he provided Rafique a fraudulent passport to enter Canada. However, Khalil’s actions failed to “establish a direct and substantial relationship between the transportation and an act in furtherance of Rafique’s unlawful presence in the United States.” Accordingly, the Second Circuit reversed Khalil’s conviction on Count Four.