In United States v. Rolle, No. 19-11354 (Apr. 14, 2023) (Wilson, Jordan, Brasher), the Court affirmed the district court’s denial of Mr. Rolle’s motion to dismiss the indictment.

Mr. Rolle was charged with one count of conspiracy to encourage and induce aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I); 16 counts of encouraging and inducing aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii); and one count of conspiracy to allow, procure, and permit aliens to enter the United States, in violation of 8 U.S.C. § 1327.

Mr. Rolle moved to dismiss the indictment, arguing that it failed to state a crime because his conduct occurred outside the United States.  The Court disagreed, and, as a matter of first impression, held that §§ 1324(a)(1)(A)(iv), (1)(A)(v)(I), and 2(B)(ii), apply extraterritorially.  Its holding is in line with the holdings of the  1st, 5th, 9th, and D.C. Circuits.

In so holding, the Court affirmed the continued vitality of United States v. Bowman, 260 U.S. 94 (1922), which held the presumption against extraterritoriality does not apply “to criminal statutes which are, as a class, not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated . . . .”  The Court reasoned that § 1324(a)’s scope  and usefulness would be greatly limited if the statute were restricted to the territorial United States.  That is, given the nature of illegal immigration, much of the conduct under the statute is likely to occur beyond, at, or near our borders, and as a result, strongly suggests that Congress intended the statute to apply to extraterritorial conduct.

The Court also noted that its holding comported with international law because the protective principle supported the United States’ exercise of jurisdiction.