UNITED STATES of America, Plaintiff-Appellant, v. Marky Onge TERRENCE, Defendant-Appellee

132 F.3d 1291, 97 Daily Journal DAR 15651, 97 Cal. Daily Op. Serv. 9763, 1997 U.S. App. LEXIS 36361, 1997 WL 792668
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 30, 1997
Docket97-10116
StatusPublished
Cited by4 cases

This text of 132 F.3d 1291 (UNITED STATES of America, Plaintiff-Appellant, v. Marky Onge TERRENCE, Defendant-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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UNITED STATES of America, Plaintiff-Appellant, v. Marky Onge TERRENCE, Defendant-Appellee, 132 F.3d 1291, 97 Daily Journal DAR 15651, 97 Cal. Daily Op. Serv. 9763, 1997 U.S. App. LEXIS 36361, 1997 WL 792668 (9th Cir. 1997).

Opinion

REINHARDT, Circuit Judge:

The government appeals the dismissal of the indictment against defendant Marky Onge Terrence for illegal re-entry as a deported alien in violation of 8 U.S.C. § 1326(a). The district court held that the Compact of Free Association (Compact) between the United States and Palau, 48 U.S.C. § 1931, exempts Palauans from complying with the provisions of § 1326(a) and thus renders Terrence immune from prosecution under that section. We disagree. The plain language of the Compact makes it clear that it affords no such exemption or immunity. Accordingly, we reverse and order that the indictment be reinstated.

I.

Terrence, a citizen of Palau, was admitted to Guam as a non-immigrant student in 1986. In 1989, he was convicted in the Superior Court of Guam of multiple felonies, including burglary, theft, and felony escape, and sentenced to four years in prison. Based on the burglary conviction, he was deported to Palau. In 1994 and early 1995, he applied for permission to re-enter the United States; his application was denied both times. He nonetheless re-entered Guam in May 1995 and October 1995. 1 He did so without obtaining the permission of the Attorney General.

*1293 Terrence was arrested in Guam and was charged with two counts of re-entry without the Attorney General’s permission, in violation of 8 U.S.C. § 1326(a). Section 1326(a) provides that “any alien who has been ... deported” must obtain permission from the Attorney General before re-entering the United States. Failure to obtain such permission prior to re-entry constitutes a felony. 2 Terrence moved to dismiss the indictment on the ground that Title I, Article IV, § 141(a) of the Compact allows any citizen of Palau to enter the United States for employment purposes without the Attorney General’s permission, even after a prior deportation.

The Compact governs the relationship of “free association” between the United States and Palau, one of the four governments comprising the Trust Territory of the' Pacific Islands. S.Rep. No. 99-403, at 1 (1986), reprinted in 1986 U.S.C.C.A.N. 6207. It was adopted by the United States Congress on November 14, 1986, and accepted by the Republic of Palau’s voters on November 9, 1993. The Compact provides a grant aid package for Palau, military defense privileges for the United States, and special immigration privileges for citizens of each. Article IV § 141(a), which regulates immigration, states that citizens of Palau:

may enter into, lawfully engage in occupations, and establish residence as a nonim-migrant in the United States and its territories and possessions without regard to paragraphs (14), (20), and (26) of section 212(a) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(14), (20), and (26).

Section 141(a) also provides that Palauans “shall be considered to have the permission of the Attorney General ... to accept employment in the United States.”

Title 8 U.S.C. § 1182(a) sets forth certain prohibitions against entry into the United States. Subsections (14), (20), and (26) of § 1182(a), now recodified as § 1182(a)(6), (7)(A), and (7)(B), prohibit entry by persons seeking to perform certain forms of employment, unless they have obtained the necessary labor certifications, and by persons who are not in possession of required visas, passports, or other entry documents. It is the prohibitions contained in these. subsections that are waived for Palauans by Compact § 141(a). The effect of the waiver is that Palauans need not obtain visas, passports, or other immigration papers and may enter for the purpose of performing certain types of employment without having to obtain the work certifications required of other aliens. Aside from § 141(a)’s provision exempting Palauans from the scope of the three speci-. fied subsections of § 1182(a) and aside from § 141(a)’s other provision declaring that Pa-lauans are deemed to have the Attorney General’s permission to accept employment, the Compact does not waive or otherwise mention the requirements of any other subsections of § 1182(a) or of any other immigration laws, including those that exclude aliens who have previously been deported. Specifically, the Compact does not waive or otherwise mention § 1326(d) or § 1182(a) subsections (16) and (17).

The defendant argues that the Compact afforded him, as a Palauan citizen, the unconditional right to enter the United States to accept employment, and that, unlike other previously deported aliens, he was not required to obtain consent from the Attorney General in order to re-enter. In short, the defendant contends generally that, as a Pa-lauan, he is exempted by the Compact from immigration laws, at least if he intends to *1294 obtain employment upon entry, and, specifically, that under the Compact he need not obtain the permission of the Attorney General to re-enter after being deported.

The district' court agreed with Terrence’s conclusion as to the effect of Compact § 141(a), although it relied on a somewhat different rationale than the defendant. In interpreting the Compact, the district court concluded that the “first sentence” of § 141(a) should be read separately:

The first sentence of the statute allows all Palauans into the U.S. and Guam, regardless of what grounds would otherwise exclude them. The second clause of the statute then states that even if the alien were excludable under (14), (20) or (26), the alien may be allowed to enter. By the initial language of the statute, all Palauans are permitted entry under this statute ...

Based on this construction of the Compact and on certain legislative history, the court granted Terrence’s motion to dismiss the indictment.

II.

In interpreting the Compact, as in interpreting a statute, we first look to its plain language. Cf. Alarcon v. Keller Indus., Inc., 27 F.3d 386, 389 (9th Cir.1994). The government contends that Palauans must generally comply with immigration laws and that Compact '§ 141 exempts those' seeking entry or re-entry only from subsections (14), (20), and (26) of 8 U.S.C. § 1182. Specifically, the government contends, the Compact does not waive the requirements of the other provisions of the immigration laws, and in particular does not waive the provisions of subsections (16) and (17) of § 1182(a) or the provisions of § 1326(a), the section Terrence was convicted of violating. 3

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132 F.3d 1291, 97 Daily Journal DAR 15651, 97 Cal. Daily Op. Serv. 9763, 1997 U.S. App. LEXIS 36361, 1997 WL 792668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-of-america-plaintiff-appellant-v-marky-onge-terrence-ca9-1997.