                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-2704
                                    ___________

United States of America,             *
                                      *
                     Appellee,        *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Minnesota.
Daniel Vallejos-Batres,               *
also known as Danilo Vallejos-Batres, *    [UNPUBLISHED]
also known as Danilo Vidal            *
Vallejos Batres,                      *
                                      *
                    Appellant.        *
                                 ___________

                              Submitted: February 12, 2003

                                   Filed: February 26, 2003
                                    ___________

Before WOLLMAN, HEANEY and MELLOY, Circuit Judges.
                         ___________

PER CURIAM.

       Daniel Vallejos-Batres appeals from his conviction for illegal reentry to the
United States following deportation. He asserts the district court erred when it denied
him the opportunity to present a defense through jury instructions, evidence, and
argument that the government was required to prove that he knowingly and
intentionally remained in the United States without permission. Vallejos-Batres is
from El Salvador, and he believed he was allowed to enter and remain in the United
States under temporary protected status, which was extended to Salvadorans
following devastating earthquakes in 2001. On the basis of United States v.
Gonzalez-Chavez, 122 F.3d 15 (8th Cir. 1997), we affirm.

      The statute under which appellant was prosecuted and convicted, 8 U.S.C. §
1326, provides that an alien who:

      (1) has been denied admission, excluded, deported, or removed or has
      departed the United States while an order for exclusion, deportation, or
      removal is outstanding, and thereafter (2) enters, attempts to enter, or is
      at any time found in, the United States, unless (A) prior to his
      reembarkation at a place outside the United States or his application for
      admission from foreign contiguous territory, the Attorney General has
      expressly consented to such alien’s reapplying for admission; or (B)
      with respect to an alien previously denied admission and removed,
      unless such alien shall establish that he was not required to obtain such
      advance consent under this chapter or any prior Act, shall be fined under
      Title 18, or imprisoned not more than 2 years, or both.


Appellant thought he had permission to be in the United States. He asserts his belief
constitutes an affirmative defense to illegal reentry, which should have been
presented to the jury. He argues that 8 U.S.C. § 1326 is a specific intent crime, which
requires the government to prove that the defendant not only intended to be in the
United States, but also intended to violate the law by returning to this country,
knowing that he lacked the legally required permission.

      This circuit has held that 8 U.S.C. § 1326 is not a specific intent crime. See
United States v. Gonzalez-Chavez, 122 F.3d 15 (8th Cir. 1997). A panel of this court
explained in that case that:

      We agree with those courts that have held that specific intent is not an
      element of the offense in § 1326 prosecutions. Section 1326 is silent on

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      the issue of criminal intent, and while statutory silence alone does not
      necessarily dictate that intent is not an element of the stated crime,
      nothing in the legislative history of §1326 supports inferring an element
      of specific intent. To the contrary, the use of express language
      concerning specific intent in other provisions of the Immigration and
      Nationality Act suggests that Congress intended to establish a mala
      prohibita offense “to assist in the control of unlawful immigration by
      aliens.”

Id. at 17 (citations omitted). We therefore affirm the conviction. See 8th Cir. R.
47B.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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