ON PETITION FOR REHEARING
By Petition for Rehearing the government strenuously urges that the original opinion in this case, 466 F.2d 1298, was in error in imputing such critical importance to the words "arrested and" in 8 U.S.C.A. § 1326. "The simple, and correct, answer," the government suggests, "* * * is that the term `arrested and' in the statute is now meaningless. * * * It is, indeed, surplusage." Petition for Rehearing at page 9.
To support this curious assertion, the government argues three points. First, it is pointed out that previous decisions have virtually ignored the "arrested and" language of the statute and concentrated on the "deportation" terminology. Undeniably this is so, but the argument is of no moment. The mere fact that, as the government concedes, no previous Court has been confronted with the precise argument raised in this appeal certainly cannot prevent this Court from considering this
More importantly, the cases cited by the government are either readily distinguishable or not in point. In the Mrvica case,
Mrvica involved a civil deportation proceeding. Much more latitude is tolerable in a civil deportation case than in a criminal prosecution such as the case at bar in which the criminal statute must be strictly construed.
By the same reasoning, words in statutes should not be discarded as "meaningless" and "surplusage" when Congress specifically and expressly included them, particularly where the words are excluded in other sections of the same act. Compare 8 U.S.C.A. § 1326 with 8 U.S.C.A. § 1101(g). But the Court in Cabanillas went further:
It would be similarly absurd for this Court to think that Congress left the words "arrest and" in Section 1326 inadvertently.
Secondly, the government argues that since it is not required to show specific intent
While it is true that the Show Cause Order procedure might persuade Congress to delete or modify the "arrested and" wording of the criminal statute, it is equally true that the statute has not been changed yet. "Arrest" is still an element of the offense, unless and until Congress amends the law. Faced with that reality, our task becomes one of determining what "arrest" the statute contemplates. The fact that, as the government urges, the pre-show cause order arrest which was in less enlightened days a jurisdictional requisite to the validity of deportation proceedings is no longer practiced does not change the statute. We adhere to the position stated in our original opinion for the reasons there stated that "there is simply no logical nexus between a pre-hearing arrest and the criminality of a subsequent illegal reentry," 466 F. 2d at p. 1305 but that the § 243.2 post-hearing "arrest" furthers the Congressional objective of the Act.
Our decision should not discourage the humane approach which has heretofore typified immigration proceedings. For our decision really changes nothing. What and all that is required is that the INS abide by its own mandatory regulations. Specifically, before criminal sanctions can be imposed for re-entry after arrest and deportation, it must be shown that the INS followed 8 C.F.R. § 243.1 and issued a Warrant of Deportation. That is sufficient restraint on liberty to constitute an "arrest," even without custodial manhandling and physical restraint, as we explained in our original opinion.
The Petition for Rehearing is