                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                       F I L E D
                                                                                         April 30, 2003
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                   Charles R. Fulbruge III
                                  FOR THE FIFTH CIRCUIT                                    Clerk
                                 __________________________

                                        No. 01-41398
                                 __________________________


UNITED STATES OF AMERICA,
                                                                                  Plaintiff-Appellee,

versus

MALLORY GOSDEN-GOMEZ,
                                                                              Defendant-Appellant.

                  ___________________________________________________

                          Appeal from the United States District Court
                              For the Southern District of Texas
                                     (No. CR-B-01-400)
                  ___________________________________________________


Before SMITH, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

         Mallory Gosden-Gomez (“Gosden”) appeals his conviction under 8 U.S.C. § 1326 for being

an alien in the United States after previously being denied admission and excluded. For the following

reasons, we REVERSE his conviction.

                               I. FACTS AND PROCEEDINGS

         United States Border Patrol agents apprehended Gosden on July 18, 2001, near San Pedro,



         *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Texas. At that time, Gosden admitted to agents that he entered the United States through a river near

San Pedro, Texas, without being inspected by an immigration officer. He further informed them that

he was a citizen of Nicaragua, and that he had been deported several times, but he had not received

a hearing, and he had a fear of persecution in his native country.

       Records revealed that Gosden’s interaction with the Immigration and Naturalization Service

(“INS”) dated back to June 26, 1982, when he submitted a request for asylum in the United States.

The application showed that Gosden had entered the United States illegally, and that he had no

criminal record.1 The INS arrested Gosden on October 13, 1983, and released him on bond on

October 21, 1983. The INS automatically terminated his application for asylum. After a change in

venue, Gosden’s deportation hearing was reset for December 4, 1984, in Houston, Texas. There was

no evidence that Gosden received notice regarding the December 4 hearing. Gosden did not appear

at the hearing, and was ordered deported (“the 1984 deportation order”) in absentia based on his

illegal entry. The act ual warrant of deportation issued on May 9, 1985. The warrant was not

executed until April 28, 1994, when the INS sent Gosden to Nicaragua. In the meantime, Gosden

was convicted of several misdemeanors, including possession of marijuana and driving while

intoxicated (“DWI”).2

       Following Gosden’s removal from the United States in 1994, he married twice, both times

to United States citizens. Gosden reent ered the United States approximately a year after the INS

deported him in 1994. Gosden’s second wife, Linda Gomez, submitted an application to adjust



       1
        At that time, the United States was granting Nicaraguans asylum.
       2
         On January 31, 1996, Gosden pled guilty to third offense DWI, and was sentenced to
sixty days in jail.

                                                  2
Gosden’s status as a spouse of a United States citizen on August 7, 1997. The INS never adjudicated

the application. While the INS researched the application, however, they paroled Gosden from

December 30, 1997 through December 29, 1998 and granted him a work permit. On October 31,

1997, Gosden’s counsel submitted an application to the Attorney General to request permission to

reapply for admission into the United States after deportation or removal. There is no evidence that

Gosden’s application was either granted or denied by the Attorney General.3 Later, when Gosden

sought to renew his work permit, the INS discovered that he had been previously deported and had

two drug convictions. Consequently, the INS reinstated the 1984 order of deportation and deported

Gosden on March 18, 1999.

       On September 11, 2000, an INS agent received information that Gosden had been arrested

and was a citizen of Nicaragua. After learning that Gosden had previously been removed, the INS

placed a detainer on Gosden. Gosden was indicted, tried by a jury, and convicted for illegal reentry

into the United States after deportation. The court sentenced Gosden to six months in prison, and

the INS deported him on March 22, 2001.

       During trial, the court discovered that every one of Gosden’s deportations were based on the

December 4, 1984 deportation hearing in absentia and the 1984 deportation order issued pursuant

to the hearing. As the Government’s witnesses conceded, if the 1984 deportation order was invalid,

then all of the other deportation orders following that order were also invalid. At the close of the

Government’s case in chief, the district court partially granted Gosden’s motion for judgment of

acquittal, ruling that the Government had not adduced sufficient competent evidence to show that


       3
        The only evidence showing that Gosden’s October 31, 1997 application to reapply for
admission was never granted are the certificates of non-existence of any record of the INS
granting Gosden permission for admission into the United States after deportation or exclusion.

                                                 3
Gosden had been previously deported and removed because Gosden’s 1984 deportation order was

invalid. With regard to the 1984 deportation order and the charge of being present in the United

States after being deported and removed, the court stated:

       I am no t going to leave to the jury to determine legally whether or not there
       was—inasmuch as all the testimony from the Government witnesses have been to the
       effect that all deportation [sic] have been predicated upon what happened in 1984, I
       am not going to leave the legal issue whether it was legal or not to the jury.
       ...
       And although I am not convinced altogether that he was not given proper notice
       because they wouldn’t have to give it to him in person . . . the Government’s evidence
       did not show sufficient evidence that it was done consistent with what they had to do.
       I so find. I don’t think, for example, there is any evidence to the effect that he was
       given appropriate notice by which he would have had a fair disposition of his
       application for asylum.

4 R. 256-57. The court ruled, however, that the Government could proceed on the theory of illegal

reentry after having been denied admission and excluded from the United States. This was the basis

upon which the jury returned a guilty verdict.

                                  II. STANDARD OF REVIEW

       “The standard of review in reviewing the sufficiency of the evidence in a criminal case is

whether a reasonable trier of fact could have found that the evidence est ablished guilt beyond a

reasonable doubt.” United States v. Smith, 296 F.3d 344, 346 (5th Cir. 2002) (internal quotations

omitted). We view the evidence in the light most favorable to the verdict. United States v. Dean,

59 F.3d 1479, 1484 (5th Cir. 1995). We will reverse a conviction if the evidence, construed in favor

of the prosecution, gives equal or nearly equal circumstantial support to a theory of guilt and a theory

of innocence. United States v. Turner, 319 F.3d 716, 721 (5th Cir. 2003).

                                         III. DISCUSSION

       Gosden raises five issues on appeal. Nevertheless, because Gosden’s first issue for appeal is


                                                   4
dispositive of this case, we only address whether there was sufficient evidence to sustain his

conviction.

       Gosden’s history with the INS spans over 20 years. Under the statutory framework before

the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), there were two ways of denying an alien the hospitality of the United States: deportation

hearings and exclusion hearings. Landon v. Plasencia, 459 U.S. 21, 25 (1982). The type of hearing

an alien received depended on whether he made an “entry” into the United States, or whether he was

outside the United States awaiting entry. Id. at 26. When the IIRIRA went into effect, the focus of

the inquiry was no longer whether the alien made an entry, but whether the alien had been admitted4

to the United States. Post-IIRIRA, “[a]n alien present in the United States who has not been

admitted or arrives in the United States (whether or not at a designated port of arrival and including

an alien who is brought to the United States after having been interdicted in international or United

States waters) shall be deemed . . . an applicant for admission.” 8 U.S.C. § 1225(a)(1).

       The IIRIRA made a number of significant changes to immigration laws. United States v.

Pantin, 155 F.3d 91, 92 (2d Cir. 1998). A change critical to this appeal concerns its modification of

the language of § 1326(a). Whereas § 1326(a) once referred to aliens who have been “arrested and

deported” or “excluded and deported”, the IIRIRA substituted language referring to aliens who have

“been denied admission, excluded, deported or removed”. United States v. Lopez-Gonzalez, 183

F.3d 933, 935 n.5 (9th Cir. 1999) (citing 8 U.S.C. § 1326(a)). In United States v. Pena-Renovato,

168 F.3d 163, 164 (5th Cir. 1999), this Court noted that the IIRIRA provides that “any reference in


       4
         Pre-IIRIRA, an alien was classified as admitted to the United States when he was
inspected by an officer and permitted to enter. See Carnejo-Molina v. INS, 649 F.2d 1145, 1147
(5th Cir. Unit A July 1981).

                                                  5
law to an order of removal shall be deemed to include a reference to an order of exclusion and

deportation or an order of deportation.” Id. (citing IIRIRA § 309(d)). As such, this Court has

implicitly recognized that the terms enumerated in § 1326(a) are equivalent.

       Another notable IIRIRA modification in immigration law concerns 8 U.S.C. §

1229a(e)(2)(A). Section 1229a outlines procedures for an alien’s removal from the United States.

Under the IIRIRA, aliens seeking admission are placed in removal proceedings under § 1229a. By

placing an alien in a § 1229a proceeding, the INS determines whether an alien is admissible under 8

U.S.C. § 1182(a). An alien is inadmissible if the INS determines the alien is removable. Section

1182(a), which addresses grounds by which an alien is inadmissible was modified by the IIRIRA, such

that “is excludable” was substituted by “is inadmissible”, IIRIRA § 308(d)(1)(B) (codified at 8 U.S.C.

§ 1182), thereby implying that the terms “excludable” and “inadmissible” are also equivalent terms.

There was undisputed testimony at trial that both “deny admission” and “exclude” were the same.

4 R. at 252.

       The Government concedes that there was insufficient evidence as a matter of law to sustain

Gosden’s conviction. The Government argues that the term “denied admission” under the IIRIRA

refers to an alien who has been placed in a removal proceeding pursuant to § 1229a. At trial, there

was no evidence that Gosden had been placed in a § 1229a removal proceeding and found

inadmissible5 under § 1182(a). 6 The Government did not present evidence at trial showing that



       5
         “Inadmissible” is equivalent to the pre-IIRIRA term, “excludable”. United States v.
Landeros-Mendez, 206 F.3d 1354, 1356 n.1 (10th Cir. 2000) (citing 8 U.S.C. §§ 1182, 1251
(1994)).
       6
        Each time Gosden was removed from the United States, the INS reinstated the 1984
order of deportation. 4 R. at 196-97, 200-02.

                                                  6
Gosden had been excluded pursuant to pre-IIRIRA procedures. Accordingly, the Government

concluded t hat there was insufficient evidence to support Gosden’s conviction for being “denied

admission and excluded” from the United States.

       We agree that there is insufficient evidence to sustain Gosden’s conviction under the IIRIRA.

There is no evidence that Gosden was ever deemed inadmissible by the INS. Under § 1225 (a)(1),

Gosden would be considered an applicant for admission. There was no evidence that Gosden was

ever placed in a § 1229a proceeding to determine his admissibility. Thus, he was never adjudicated

as “inadmissible” under the IIRIRA and therefore was never “denied admission”. Thus, because the

INS never found Gosden inadmissible under the IIRIRA, the INS also could not have found Gosden

“excludable” under the criteria set forth under § 1182(a). See Landeros-Mendez, 206 F.3d 1354,

1356 n.1.

                                      IV. CONCLUSION

       For the foregoing reasons, we REVERSE Gosden’s conviction for being present in the United

States after being denied admission and excluded.




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