Ninth Circuit Denies �Necessity’ Defense to HIV-Positive Deportee

A district judge properly barred a Mexican immigrant charged with illegal reentry after deportation to use a “necessity” defense based on his HIV-positive status and alleged need to search for his children in the United States regarding end-of-life decisions, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In a per curiam opinion, Judges Raymond C. Fisher and Jay Bybee and Senior Judge James R. Browning said Roberto Cervantes-Flores failed to proffer evidence that he was at imminent risk of death or other serious harm in February 2003, when a Border Patrol agent spotted and chased him approximately 40 miles north of the border, near Tecate.

The court did, however, send the case back to U.S. District Judge Thomas Whelan of the Southern District of California for possible reconsideration of Cervantes’ eight-year prison sentence in light of the Supreme Court’s recent ruling that the Sentencing Guidelines are advisory rather than mandatory.

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