UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 99-4555

HUGO ROBLES-MENDIOLA,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
William L. Osteen, District Judge, sitting by designation.
(CR-98-73)

Argued: May 5, 2000

Decided: May 25, 2000

Before LUTTIG, WILLIAMS, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Aaron Edmund Michael, Charlotte, North Carolina, for
Appellant. Brian Lee Whisler, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Mark T. Calloway, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Char-
lotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Defendant Hugo Robles-Mendiola, who was convicted of illegal
reentry into the United States, appeals from the denial of his motion
for acquittal or for a new trial, which was based on the district court's
decision to exclude certain immigration documents from evidence at
trial. Because we conclude that the district court did not err in exclud-
ing the evidence at issue, we affirm.

I.

Robles-Mendiola was deported following a 1991 conviction for
assault with a deadly weapon, and he illegally returned to the United
States the following year. He was arrested in 1998, and convicted,
after a jury trial, of illegal reentry into the United States. Robles-
Mendiola was sentenced to 70 months of imprisonment, after which
he is to be surrendered to the Immigration and Naturalization Service
("INS") for deportation.

At trial, the district court excluded from evidence, as legally irrele-
vant, three immigration documents. After trial, the district court
denied Robles-Mendiola's motion for acquittal or for a new trial,
which was based on the decision to exclude the documents. Robles-
Mendiola now appeals from the denial of that motion.

II.

Robles-Mendiola was convicted under 8 U.S.C. § 1326(a)(2)(A),
which provides that a deported alien may not reenter or be found in
the United States unless, prior to his reembarkation or reapplication
for admission, "the Attorney General has expressly consented to such
alien's reapplying for admission." In excluding the three documents
at issue, the district court ruled that they were irrelevant to the ques-

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tion whether the Attorney General had given the requisite express
consent. Robles-Mendiola argues on appeal that this ruling was in
error. We disagree.

The first document excluded was INS form I-130,"Petition for
Alien Relative," J.A. 314-15, filed by Sabrina Robles, the appellant's
spouse and a United States resident. The I-130 is used by residents of
the United States to request priority in the visa application process for
their relatives. The form does not constitute an application for admis-
sion, and bears no import absent such an application. And given that
the I-130 at issue was completed by Ms. Robles, rather than by the
Attorney General or her agent, the form certainly does not constitute
the statutorily required express consent of the Attorney General to
reapply for admission.

The second document excluded below was form I-212,"Applica-
tion for Permission to Reapply for Admission Into the United States
After Deportation or Removal," J.A. 308a-308b, the approval of
which by the Attorney General would have constituted the statutorily
required express consent. However, the Attorney General never acted
on the I-212, and the form is thus not probative of the express consent
required by section 1326.

The third document excluded was INS form I-797,"Notice of
Action," J.A. 352-53. Although Robles-Mendiola urges that this form
should be read as an approval of his application for permission to
reapply for admission (I-212), it was actually an approval of the form
I-130 filed by his wife. This is clear from four entries on the form
itself (1) the notation that the "Immigrant Petition for Relative" was
the subject of the Notice of Action, (2) the notation of Sabrina A.
Robles, rather than the appellant, as the "petitioner," (3) the indication
on the form that the INS "will contact the person for whom you are
petitioning," and (4) the language in the form stating that "[a]pproval
of an immigrant petition does not convey any right or status. The
approved petition simply establishes a basis upon which the person
you filed for can apply for an immigrant or fiance(e) visa or for
adjustment of status." Thus, the I-797 does not constitute the requisite
express consent of the Attorney General to reapply for admission to
the United States.

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Robles-Mendiola appears to suggest on appeal that, even if the
documents at issue are not probative of the statutorily required
express consent, they do tend to establish that he reasonably could
have believed that the Attorney General had consented to his applying
for reentry into the United States. However, we do not believe that the
documents are probative of any such good-faith belief on the part of
Robles-Mendiola. And, more importantly, section 1326 cannot be sat-
isfied by a defendant's subjective belief that consent has been given,
no matter how reasonable that belief may be. As is made clear by the
text of the statute, and confirmed by Circuit precedent, the express
consent of the Attorney General is required. See United States v.
Espinoza-Leon, 

, 746 (4th Cir. 1989).

The documents at issue here were relevant below only to the extent
that they are probative of the express consent of the Attorney General
for Robles-Mendiola to reapply for admission. Because the docu-
ments do not tend to support the existence of such express consent,
their exclusion from evidence did not infect the trial with any error
at all, let alone error that would warrant a new trial or acquittal. We
therefore affirm the district court's denial of the motion for acquittal
or for a new trial.

AFFIRMED

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