United States v. Thum

In order for a defendant to have encouraged or induced an illegal alien to reside in the US in violation of 8 USC § 1324(a)(1)(A)(iv), the defendant must expel some effort to actually convince the illegal alien to remain in the United States, or to actually assist in the alien’s ability to remain living in the United States indefinitely.

Jorge Roberto Thum (“Thum”), a felon with a history of transporting illegal aliens for which he was on probation for, was arrested for allegedly violating 8 USC § 1324(a)(1)(A)(iv) by encouraging or inducing an illegal alien to reside in the US. Following an evidentiary hearing, where the government introduced evidence that Thum walked an illegal alien from a fast food restaurant to a nearby van that was driving to Northern California, the US district court found that Thum violated 8 USC § 1324(a)(1)(A)(iv) and revoked Thum’s supervised release, imposing a sentence of time served and two additional years of supervised release. Thum filed a timely notice of appeal arguing that there was insufficient evidence to support the allegation that he had violated 8 USC § 1324(a)(1)(A)(iv). The Ninth Circuit held that in order for a defendant to have violated 8 USC § 1324(a)(1)(A)(iv), the defendant must expel some effort to actually convince the illegal alien to remain in the United States, or to actually assist in the alien’s ability to remain living in the United States indefinitely. Thum’s actions of walking an alien from a Jack In The Box to a shuttle van getting ready to drive to Northern California did not reach a level of effort necessary to violate 8 USC § 1324(a)(1)(A)(iv). Therefore the district court improperly revoked Thum’s supervised release . VACATED AND REMANDED with instructions.