Does the government have to prove that an order of removal or deportation was issued where the alien has been deported or removed?

The district court ruled that 8 U.S.C. 1326 does not require the government to prove that an order of removal or deportation was issued where the alien has been deported or removed. We agree. We review de novo a district court's interpretation of a statute, and we begin with the text of the statute. See United States v. Havelock, 664 F.3d 1284, 1289 (9th Cir.2012) (en banc). The statute provides that an alien who enters, attempts to enter, or is at any time found in the United States shall be guilty of a crime if he previously has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding. 8 U.S.C. 1326(a)(1). Lopez argues that the last clause, while an order of exclusion, deportation, or removal is outstanding, applies to the entire subsection. As the district court concluded, however, the statutory language requires as an element of the offense an outstanding order of exclusion, deportation, or removal only when an alien has departed the United States. If the alien has been denied admission, excluded, deported, or removed, then no order is required. The phrase is worded in the passive voice because the alien is the subject of the enforcement action. The second clause presupposes that the alien departed on his own initiative, in which case, the fact of his return alone cannot support a conviction under Section 1326 because returning alone is not the criminal act punished by Section 1326(a)(1). Indeed, As a general rule, it is not a crime for a removable alien to remain present in the United States. Arizona v. United States, U.S. , 132 S.Ct. 2492, 2505, 183 L.Ed.2d 351 (2012). Rather, the criminal act is returning to the United States after the government has ordered the alien excluded, deported, or removed. Hence, the order of deportation, removal, or exclusion becomes a necessary element that the government must prove beyond a reasonable doubt if the alien returns after he has departed on his own. Adducing sufficient proof that the order was issued is the only way to demonstrate that the government

[762 F.3d 858]

has, in fact, ordered the alien removed and that his return without permission violates the statute.