FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

U N I T E D S TA T E S O F A ME R I C A , Plaintiff-Appellee
,

v

.

O R A C I O C O R

R AL E S -V AZ Q UE Z , Defendant-Appellant. No. 18-50206

D.C. No. 3:18-m j-03051-GPC-1

OPINION

Appeal from

the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding

Argued and Subm itted June 12, 2019 Pasadena, California

Filed July 24, 2019

B efore: Ferdinand F. Fernandez, Kim McLane W ardlaw,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee; Concurrence by Judge Bybee; Dissent by Judge FernandezU N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 2

SUMMARY *

Criminal Law

The panel reversed a m isdem eanor conviction for eluding

exam ination o r inspection by immigration officers in violation of 18 U.S.C. § 1325(a)(2).

The panel h eld that an alien who crosses into the country at a non-designated tim e o r p la c e is not guilty under § 1325(a)(2). R ather, to convi ct a defendant under § 1 325(a)(2), the governm ent m ust prove that the alien’s crim inal conduct occurred at a tim e and place designated for “exam ination or inspection by imm igration officers”—i.e., at

a port o f entry open f

or inspection. Because the governm ent failed to make that showing, the panel reversed the conviction.

Concurr i n g, Judge Bybee wrote separately to note his sym pathy fo r the governm ent’s position, considering the difficulty caused b y the court’s jurisprudence regardi ng § 1325(a)(1), which m akes it a crim e for an alien to enter the United States outside an open port of entry.

Dissenting, Judge Fernandez wrote that he would affirm because the elem ents of § 1 325(a)(2) are that the accused was

an alien and that he k nowingly eluded exam ination o r inspection by an imm igration officer, and there is no requirem ent that the accused either eluded inspection at a port

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 3

of entry, or, at least, eluded inspection by an imm igration officer at the m om ent he entered the United States.

C OUNSEL

Doug Keller (argued), Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant.

D. Benjam in Holley (argued), Assistant United St a tes Attorney; Helen H. Hong, Chief, Appellate Division; Robert S. Brewer Jr., United States Attorney; United States Attorney’s Office, San Diego, California; for PlaintiffAppellee.

OPINION

BYBEE, Circuit Judge:

Federal law m akes it a crim e for “[a]ny alien” to “enter[]

or attem pt[] to enter the United St ates at any tim e or place other than as designated by immi gration officers,” 8 U.S.C. § 1 325(a)(1), or to “elude[] exam ination or inspection by imm igration officers,” id. § 1325(a)( 2 )

. In this case, we consider whe ther an alien who crosses into the country at a non-designated tim e or place is guilty of “elud[ing]

exam ination or inspection by imm igration officers ” under § 1 325(a)(2). W e hold that the answer is no. To con v i c t a defendant under § 1325(a)(2), the governm ent m ust prove that the alien’s crim inal conduct o ccurred at a tim e and place designated for “e x a m ination or inspection by imm igration

o ffi cers”—i.e., at a port of entry that is o pen for inspec t i o n

.U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 4

Be cause the governm ent failed to m ake that showing in th i s case, we reverse.

I

Oracio Corrales-Vazquez is a nati ve and citizen o f Mexico who does not have authorization to enter the United States. In June 2018, h e crossed into the United S tates from Mexico approxim ately 20 m iles east of the port o f entry at Tecate, California. S everal hours after Corrales crossed into th e country, a border patrol o fficer found him along with three other individuals hiding in som e brush approxim ately four m iles north of the i n t e rnational border. Corrales adm itted to the officer that he was not authorized to be in the United S tates. He was arrested and charged with “elud[ing]

exam ination or inspection by imm igration officers,” in violation of 8 U.S.C. § 1325(a)(2).

The district court held a bench trial, during which Corrales argued that a n alien eludes exam ination o r inspection under § 1325(a)(2) only by crossing i n t o the country at a p ort of entry, a f act that the governm ent failed to prove i n his case. 1 If an alien could violate § 1325(a)(2) by sim ply crossing into the United States without exam ination o r inspection, Corrales argued, then § 1325(a)(1)—wh ich speci fically prohibits entering or attem pting to enter the United S tates at a non-designated tim e or place—“would be superfluous.”

1 Notably, Corrales did not d ispute in the district court that an alien who enters the United States between ports o f entry w ithout authorization would violate § 1325(a)(1). Corrales was charged, how ev e r, with violating only § 1325(a)(2).U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 5

The district court disagreed with Corrales’s interpretation of § 1325(a)(2), concluding that an alien “eludes exam ination

or inspection” by crossing into the United States “ without subm itting t o” an exam ination or inspection. After determ ining that Corrales crossed into the United St a t es without undergoing an exam ination o r inspecti on, the court found Corrales guilty of violating § 1325(a)(2) and sentenced him to tim e served. He now appeals his conviction.

II

On appeal, Corrales r e n e ws his argum ent that the governm ent f

ailed to adduce sufficient evidence to p rove that he “elude[d] exami n a tion o r inspection by imm igration officers” in violation of § 1325(a)(2). “W e review challenges
t o the sufficiency of evidence, including questions of statutory interpretation, de novo.” United States v. Aldana
, 878 F.3d 877, 880 (9th Cir. 20 1 7 )
, cert. denied
, 139 S. Ct. 157 (2018).

III

Section 1325(a) provides in full:

Any alien who (1) enters or attem pts to enter the United States at any ti me or place other than as designated by imm igration officers, o r ( 2 ) eludes exam ination or inspection by imm igration officers, or (3) attem pts to en te r

or obtains entry to the United States by a willfully false or m isleading representation o r the willful con c e alm ent of a m aterial fact, shall, for the first comm issio n of any such offense, be fined under T itle 18 or im prisonedU N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 6

not m ore than 6 m onths, o r both, and, for a subsequent comm ission of any such offense, be fine d under Title 18, or im prisoned not

m ore than 2 years, or both.

Congress first enacted a version of this provision in 1952

as p art of the Imm igration and Nationality Act (INA), P ub. L. No. 82-414, § 275, 66 Stat. 163
, 229. But its origins date back m uch f arther. Beginning in the early twentieth century, our imm igration laws required deportation for certain aliens who entered the United States “at any tim e or place other than as designated by imm igration officials, . . . or who enter[ed] without inspection.” Imm igrati o n Ac t of 1917, Pub. L. No. 64-301, § 19, 39 Stat. 8 74, 889. 2 In 1929, C ongress decided that alien s who “enter the United States surreptitiously” should be subject to n ot only d eportation b u t a lso crim inal penalties, H.R. Rep. No. 70-2418, at 7–8 (1929), and revised the prohibitions in the 1 917 s t a tu t e to be “broad enough to

cover entry in any m anner,” id. at 4. The new crim inal statute thus m ade it a m isdem eanor for any alien to “enter[] the United States at any tim e or place other than as designated by imm igration officials or elude[] exam ination or inspection by imm igration o fficials, or obtain[] entry to the Uni t e d States by a w illfully false or m isleading representation or the willful concealm ent of a m aterial f act.” Act of Mar. 4, 1929, Pub. L. No. 70-1018, § 2, 45 S tat. 1551, 1551 (co d i fi ed at 8 U.S.C. § 1 8 0 a (Supp. III 1929)). Congress replicated the 19 2 9

2 See also Act of Mar. 3, 1891, ch. 551, § 8, 26 Stat. 1084, 1085–86 (crim i nalizing the act of “knowingly or negligently land[ing] o r perm it[ting] to l and any alien im m igrant at any place or tim e other than that d esignated by the i nspection o fficers”); Act of Mar. 3, 1903, ch. 1012, § 1 8, 32 Stat. 1 213, 1217–18 (sam e); Act of Feb. 20, 1 907, ch. 1134, § 18, 34 Stat. 898, 904 (sam e).U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 7

statute’s three substantive prohibitions with m in i m al alteration in 1952 in the INA, and in 1990 added liability for “attem p t[ing] to enter” under § 1325(a)(1) and § 1325(a)(3). See Imm igration Act of 1990, P ub. L. No. 101-649, § 543(b)(2), 104 Stat. 4978, 5059.

W e are concerned here with what it m eans for an alien to “elude[] exam ination or inspection by imm igration officers” under § 1325(a)(2). 3 I n the governm ent’s view, any alien who crosses into the United S tates without exam ination o r inspection necessarily “eludes exam ination or inspection,”

even if the alien crosses m iles away from any place where those processes occur. Corrales, b y c o ntrast, contends that the conduct crim inalized by § 13 2 5( a )(2) can o ccur only at places and tim es designated for exam ination or inspection by imm igration officers. Taking into account the statutory text and context, we reject the governm ent’s reading o f § 1325(a)(2) and hold that the crim e of “el u d[ing]

exam ination or ins p e ction b y imm igration officers” can be

comm itted o nly where and when exam inations or inspections take place—at open ports of entry.

A

“W e begin, as u sual, with the statutory text.” Maslenjak

v. United States
, 137 S. Ct. 1918, 1 924 (2017). And because the relevant p h rase—“eludes exam ination or inspection by im m ig ratio n o f

ficers,” 8 U.S.C. § 1 325(a)(2)—“has rem ained unchanged” since it was f irst used in 1929, it “presum ptively

3 The term “exam i nation” in this provision re fe rs to m edical

exam inations, s e e 8 U .S.C. § 1222(b), while “inspection” refers to b ackg round screening, searches, and other prerequisites fo r ad m i ssi o n , see id. § 1225(a)(3), (d).U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 8

retains its original m eaning,” Whitfield v. United Stat es , 135 S. Ct. 785, 788 (2015).

The processes referenced in § 1325(a)(2)—“exam ination

or inspection by imm igration o fficers”—occur, as they always have, at “designated ports of entry” that are “staffed by imm igration officials” and “open for inspection.” Aldana
, 878 F.3d at 882 (citing 8 C.F.R. § 235.1(a)); see Ngim Ah Oy

v. Haff
, 112 F .2d 607, 6 08 (9th Cir. 1940); Kaneda v. United States
, 278 F. 694, 696–97 (9th Cir. 1922). 4 And as a literal

m a t te r , entering the United States without exam ination o r inspection, regardless of where or h ow, could be described as “elud[ing]” those processes if, a s th e governm ent urges, the word “elude” is defined broadly to m ean “evade com pliance with or fulfilm ent o f

” an obligation, 3 Oxford English Diction a ry 9 7 (1st ed. 1933) (“ OED First ”). Several

4 To be sure, under the INA, an im m igration inspection c a n technically occur anywhere along the border and at any t im e, because any alien “ who arrives in the United States”—“whether or not at a designated port of arri v a l”—is “deem ed

. . . an applicant for adm i ssion,” 8 U.S.C. § 1225(a)(1), and all “applicants for adm ission

. . . shall be inspected b y im m igration officers,” i d. § 1225(a)(3). This m eans that the border patrol agent who d iscovered Corrales technically perform ed a n “inspection” at the tim e he was found. But w e have interpreted “[t]he language in [§ 1325(a)(2)]” to refer to the “imm igration procedures conducted . . . at the tim e of entry, a fixed point in tim e.” United States v. Rincon-Jimenez
, 595 F.2d 1192, 1193 ( 9th Cir. 1979); see also 8 C.F.R. § 235. 1(a) (“Application to lawfully enter the United States shall be m ade in person to an im m igration officer at a U.S. port-of-entry when the port is open f o r inspection

. . . .”). As a result, inspections occurring after that fixed point in tim e would not fall within the “i n s p e ction” contem plated in § 1325(a)(2). Indeed, were it otherwise, then no alien w h o i s u lt im ately found and i nspected by an im m igration officer—even hours or perhaps days after the alien crossed into the United States—could be said to have “elude[d]” inspection. See United States v. Oscar
, 496 F.2d 4 92, 494 (9th Cir. 1974).U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 9

considerations, however, lead us to reject that expansive interpretation.

To begin with, not every “word in a statute

. . . extend[s]
to the outer l i mi ts of its definitional possibilities,” and the governm ent’s interpretation of the word “eludes” “sits

uncom fortably with comm on usage.” Ab u elhawa v. United States
, 556 U.S. 816, 820 (2 0 09 ) (quoting Dolan v. U .S. Postal Serv.
, 5 46 U.S. 481, 486 (2006)). In 1929, as today, the v erb “elude” was more comm only used to m ean “avoid slyly, by artifice, stratagem , or d exterity,” or “escape from in

a co v e rt m anner.” Webster’s New International D ictionary 713 (1st ed. 1930); see a lso, e.g. , Concise Oxford D ictionary of Current English 368 (2d ed. 1929) (“[e]scape a dro itly from ”); 3 OED First 97 (“escape by dexterity or stratagem , ”

or “slip away from
, escape adroitly from ”); Webster’s New Collegiate Dictionary 267 (6th ed. 1951) (“avoid adroitly, as by artifice; evade,” or “escape the notice of”); Webster’s New W o r ld College Dictionary 455 (2d ed. 1970) (“avoid o r escape from by quickness, cunning, etc.,” or “escape detection, notice, or un d erstanding by”); Webster’s Third New International D ictionary 738 (2002) (“avoid slyly o r adroitly,” or “escape the notice or perceptio n o f”). T o “elude” som ething would not usually m ean to sim ply av oid it—the avoidance generally contem p lates som e f

o rm o f “escape,” whether through “quickn ess [or] cunning[ness].” United States v. Oscar
, 496 F.2d 492, 494 (9th C ir. 1 974) (citation om itted). 5 For exam ple, “in the case of five seam en

5 I ndeed, had Congress wanted to use a broader verb such as “avoid,” it easily could have done so, as i t did in other im m igration-related statutes. See, e.g. , 18 U .S.C. § 139 (1926) (repealed 1940) ( im p osing c ri m i n al penalties on any adm itted citizen who “kn o w in gly den[ies] that he h as been so adm i tted, w i th the intent to evade or avoid any duty or liabilityU N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 10

who were not produced for inspection upon arrival” of a ship,

one m ight say that the m en “m anaged to elude the guards stationed in and about the vessel” by escaping the ship without the guards’ detection. The Tuscania
, 4 2 F. 2 d 168, 169 (2d Cir. 1930) (em

phasis added). But it would have been quite odd to say that the m en “eluded” the g uards if the m en had avoided the p o rt altogether and instead traveled by airplane. To elude, in other words, generally contem plates a risk of exposure to, and s ub se quent escape from
, the object b ei ng eluded. Applying that narrower definition h ere, an alien “eludes exam ination or inspection” only if the a lien’s conduct occurs at a ti me and p lace where the alien is at risk of undergoing those processes i n the first p lace. Because those processes occur at open and operating ports of en try , the alien’s crim inal conduct—the “elud[ing]”—m ust occur there as well. This would include, for exam ple, an alien who hides in the trunk of a vehicle passing through a port of entry,

or an alien who crosses throug h a p ort o f entry on foot and
th e n sneaks b y the o fficers conducting inspections o r

exam inations. But it would not include an alien who crosses the border m iles away from any place where those processes

occur.

More im portantly, even if the governm ent’s broader interpretation of the phrase “eludes exam ination o r i n spection” m ight be plausible in isolation, “statutes are no t

im posed or required by law” (em phasis added)). Or Congress could have

re p l i ca te d the l anguage already i n use in the p redecessor to § 1325(a), which prohibited “enter[ing] without inspection.” 39 S tat. at 889. Congress’s decision not to use either of th e se “ ready alternative[s]” in § 1325(a)(2) “indicates that Congress d id n ot i n fact want” this particular provision of the statute to be as broad as the governm ent claim s. Advocate Health Care Network v. Stapleton
, 1 3 7 S. Ct. 1652, 1659 (2017) (citing Lozano v. Montoya Alvarez , 572 U.S. 1, 16 (2014)).U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 11

read as a collection of isolated phrases.” Abuelhawa
, 556 U.S. at 819. “It is a fundam ental ca non of statutory construction that the words of a statute m ust be read in their
context and with a view to their place in the overall statutory schem e.” Sturgeon v. Frost
, 136 S. Ct. 1061, 1 0 70 (2016) (quoting R oberts v. Sea-Land Servs., Inc.
, 5 66 U.S. 93, 101 (2012)). And in this case, “statutory context com pels a m ore circum scribed reading.” McDonnell v. United States
, 136 S. Ct. 2355, 2367 (2016).

When § 1 325(a) is read as a whole, the “overall statutory schem e,” Sturgeon
, 136 S. Ct

. at 1 070 (citation

om itted)—and § 1325(a)(2)’s place within it—becom es evident. As described above, § 1325(a)(2) follows § 1325(a)(1), which separately m akes it a crim e to “enter[] o r attem p t[] to enter the United States at any tim e or place other than as d esignated by imm igration officers.” And § 1325(a)(2) precedes § 1325(a)(3), which m akes it a crim e t o e nt e r o r attem

pt to enter the United States “by a w illfully false or m isleading representation or the willful concealm ent of a m aterial fact.” Considered together, these three provisions—which carry identical crim inal penalties—are “broad enough to cover entry in any m anner.” H.R. Rep. No. 70-2418, at 4. Section 1325(a)(1) covers aliens who enter o r attem p t to enter outside o f an open port o f entry. See Aldana
, 878 F.3d at 882. Section 1325(a)(2) covers aliens who cross through an o p en p ort o f entry, but elude exam ination o r inspection in doing so. And § 1325(a)(3) covers aliens who

cros s through an open port of entry and subm it to

exam ination and i nspection, but obtain entry (or attem pt to

o b t a i n e n try ) th r o ug h wi l l fu l mi s r e p r e s e n t a t i o n o r concealm ent. The statute works as a seam less whole.U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 12

The g overnm ent’s reading of the statute disrupts its careful structure. If, as the g o v e rnm ent argues, m erely crossing into the United S tates wi th o ut exam ination o r inspection violates § 1325(a)(2), regardless of tim e or place, then m uch of the highly specific language in § 1325(a)(1) would be superfluous—any alien who “enters

. . . the United States at any [non-designated] tim e or p l a c e” under § 1325(a)(1) would also be guilty of “elud[ing] exam ination

or inspec t i o n” under § 1325(a)(2). The governm ent’s interpretation thus violates “the ‘cardinal principle’ o f interpretation that courts ‘m u st giv e e ffect, if possible, to every clause and word o f a statute.’” Loughrin v. United States
, 573 U.S. 351, 358 (2014) (quoting Williams v. Taylor
, 529 U.S. 362, 404 (2000)); see Rubin v. Islamic Republic of Iran
, 138 S

. Ct. 8 16, 8 24 ( 2 0 1 8 ) (“[O]ne of the m ost basic interpretive canons [is] that a statute should be construed so that effect is g iven to all its provisions, so that n o p art will be inoperative o r superfluous, void or insignificant.” (interna l alteration om itted) (quoting Corley v. United States
, 556 U.S. 303, 314 (2009))). 6

Indeed, if § 1325(a)(2) is as broad as the governm ent says it is, then a t the tim e of § 1 3 25(a)’s enactm ent—before “attem p t[]” was added in 1990, see 104 Stat. at 5059—§ 1325(a)(1) would have been n ot only superfluous but subsum ed entirely within § 1 3 25(a)(2). In other words,

6 The dissent argues that we should not “ consider the canon that seeks
to avoid redundancy” because, i n its view, § 1325 (a )(2 ) “ is not truly

am biguous.” Dissent at 2 7. But as the Suprem e Court has explained in rejecting this precise argum ent, ignoring “the antisuperfluousness canon”

m e re l y “ because ‘there is nothing am biguous about the l anguage’” of a part ic u la r provision in i solation “violates ‘ the cardinal rule that a statute is to be read as a whole.’” Corley
, 5 56 U.S. a t 3 14 n.5 (quoting King v. St. Vincent’s Hosp. , 502 U.S. 215, 221 (1991)).U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 13

eve ry violation of § 1325(a)(1) for entering at a nondesignated tim e or place would h ave also been a violation o f § 1325(a)(2) for eluding exam ination o r inspection. The governm ent’s interpretation therefore also runs afoul of the relat ed principle of interpretation “that ‘general language o f

a statutory provision, although broad enoug h t o include it, will not be held to apply to a m atter specifically d ealt with in another part of the sam e ena c t m ent.’” B loate v. United States
, 559 U .S. 196, 207–08 (2010) (internal alteration

om itted) (quoting D. Gi n sberg & S ons v. Popkin
, 285 U.S. 204, 208 (1932)); see RadLAX Gate wa y Hotel, LLC v. Amalg a m a ted B a n k
, 5 6 6 U

. S

. 6 3 9
, 6 4 5

–4 6 (2 0 1 2) (explaining how the “general/specific canon” acts with th e a ntisurplusage canon to avoid “the superfluity of a specific provision that is swallowed by [a] general one”).

Although neither of these interpretiv e principles establishes “an absolute rule,” they do provide “a strong indication of statutory m eaning,” especially when, as here, “the two [provisions] are interrelated and closely positioned, both in fact b eing parts of the sam e statutory schem e.” RadLAX
, 566 U.S. at 6 45–46 (internal al t er ation om itted) (quoting HCSC–Laundr

y v. United States
, 450 U.S. 1, 6 (1981) (per curiam )). For exam ple, in Maslenjak
, the Suprem e Court rejected an interpr e t ation of a provision

mak i n g it a crim e to “procure[], contrary to law,

n atur alization” that w ould have swept in any person wh o

“ o b t a i n [ s ] c i t i z e n s h i p w i t h o u t t h e r e q u i s i t e l e g a l qualifications.” 137 S. Ct. at 1925 & n.2 (quoting 18 U.S.C. § 1 425(a)). The Court observed that such an expansive interpretation, although perhaps “plausible” in isola tion, would ha ve rendered “superfluous” the “highly specific language” in an adjoining provision that m ade it a crim e “to ‘pr ocure or obtain naturalization’ for ‘[one]self o r anotherU N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 14

person not enti t led thereto.’” Id. at 1925 n.2 (alteration in original) (quoting 1 8 U.S.C. § 1425(b)). “Rather than reading those words to do no work, in violation o f ordinary canons o f statutory construction,” the Court understood “Co n g ress to have defined two separate crim es.” Id. Sim ila r exam ples abound. See, e.g. , Marinello v. United State s , 1 3 8 S. Ct. 1101, 1 106–07 (2018) (rejecting the government’s “literal” interpretation of a felony obstruction provision in the Internal Revenue Code in part because it would have “render[ed] superfluous” the “num erous m isdem eanors” in the Code that “specifically ” d e alt with willful v iolations of certain tax requ irem ents (citation om itted)); United States v. Chase
, 135 U. S. 255, 260 (1890) (declining to interpret the noun “writing” in a crim inal s t atute to include m ailed letters in light o f the “separate and d i s t i n ct clause” in the statute “specifically” dealing with letters); United States v. Cabaccang
, 3 32 F.3d 6 22, 627 (9th Cir. 2003) (en banc) (rejecting the gov e rn m ent’s interpretation of 21 U.S.C. § 952(a) under whi ch “any conduct proscribed by the first

c lause of § 952(a) also would have been covered by th e statute’s broader seco nd clause when § 952 was enacted in 1970, rendering the first clause of the statute superfluous”).

These basic interpretive principles control this case. The governm ent concedes that, under its broad interpr e t ation o f § 1325(a)(2), there is n o set of f acts th a t wo u l d h ave been crim inal under § 1325(a)(1) b ut n ot under § 1325(a)(2) at the
t im e of the statute’s enactm ent—any alien who entered at a non-designated tim e or place in violat i o n o f § 1325(a)(1) would have also elu d ed ex am in atio n o r in spection in violation of § 1 325(a)(2). B ecause § 1325( a )( 1) “specifically deal[s] with” entry at a non-designated tim e or place, the b roader language in § 1325(a)(2) should “not be held to apply to” thatU N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 15

sam e conduct. RadLAX
, 566 U.S. at 6 4 6 (quoting D

. Ginsberg & Sons
, 285 U.S. at 208).

To b e sure, § 1325(a)(1) now crim inalizes “at t emp t s to enter,” while § 1 325(a)(2) does not expressly m ention “attem p t.” So § 1325(a)(1), as it exists t o d a y , may not be totally subsum ed within § 1325(a)(2). But “attempt” was not added to § 1325(a)(1) unt i l 1990, see 104 Stat. at 5059, and “later laws that ‘do not s e e k to clarify an earlier enacted general term ’ and ‘do n o t depend for their effectiveness upon clarification, or a change in the m eaning of an earlier statute,’

are ‘beside the p o int’ in reading the first enactm ent.” Gutierrez v

. Ad

a , 528 U.S. 250, 257–58 (2000) (quoting Almendarez-Torres v

. United States
, 523 U.S. 224, 237 (1998)); cf. Ne w Pr i me Inc. v. O liveira
, 139 S. Ct. 532, 539 (2019) (“It’s a ‘fundam ental canon of statutory construction’ that words generally should b e ‘inte rpreted as taking their ordinary m eaning at the tim e Congress enacted the statute.’” (citation and inte rnal alterations om itted)). And as the Suprem e Court has explained, the 1990 a mendm ents to the I N A

— a n d t h i s s e c t i o n o f t h e a m e n d m e n t s i n partic ul a r —were not “intended to change, or to clarify, the fundam ental r elationship” between the INA’s substantive provisions. Almendarez-Torres
, 523 U.S. at 233–34. The 1 9 90 am endm ents to § 1325(a)(1) did not expand the scope of conduct prohibited by § 1325(a)(2).

In any event, even under the statute as it exists today, the governm ent’s interpretation still run s afoul of “the
presum ption ‘that statutory language is not superfluous
, ’ ” McDonnell
, 136 S. Ct. at 2369 (citation om itted), because the actual entry o ffense in § 1325(a)(1) would serve no role in the statute—every alien who “enters

. . . the United States at any [non-designated] tim e o r place” under § 1325(a)(1) wouldU N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 16

also “elude[] exam ination or inspection” under § 1325(a)(2). Rather than r eading the “highly specific language” in § 1325(a)(1) “to do no work, in violation of ordinary canons of statutory construction, we understand Cong r e ss to have defined two se p a r a t e crim es” in § 1 325(a)(1) and (2). Maslenjak , 137 S. Ct. at 1925 n.2.

Confirm ing our understanding is the fact th at § 1 3 2 5 (a)(1) and § 1325(a)(2) are connected by the word “or,” a term that is “alm ost always disjunctive, that is, the words i t connects

are to b e given separate m eanings.” Lo ugh rin , 573 U.S. at 357 (quoting United Sta t es v. Woods
, 571 U.S. 31, 45 (2013)). T he disjunctive connector further dem onstrates that § 1325(a)(1) and § 1325(a)(2) prohibit d ifferent conduct. Y et the governm ent would have us read § 1325(a)(2) to prohibit

m uch of the sam e conduct already prohibited by § 1325(a)(1). Construing § 1325(a)(1) as “a m ere subset of” § 1325(a)(2),

as the governm ent urges, “disregard[s] what ‘or’ custom arily

m eans” and “effective l y r eads ‘or’ to m ean ‘including’—a definition foreign to any dictionary we know of.” Id. 7

7 The g o vernm ent raises a superfluity problem of its o wn, asserting that even under a narrower reading of § 1325(a)(2), the statute would still overl ap w ith 19 U.S.C. § 1459, which im poses crim inal penalties o n “individuals arriving in the United States” who intentionally f ail to “enter

. . . at a border crossing point” or fail to “present th e m selves

. . . f o r inspection.” 19 U.S.C. § 1459(a), (g). W e are unpersuaded. Section 1459 is located in the title of the U.S. Code d e a l i ng with custom s, so it says little about th e scope of § 1325(a)(2), which is in a separate title dealing with im m igration. Indeed, § 1459 applies t o al l “individuals,” not j u st “aliens.” And in any event, overlap “is not uncomm on in crim i nal statutes.” Loughrin
, 573 U.S. at 358 n.4. W h at is uncom m on, however, is reading one specific crim inal provision to be subsum ed by an adjoining

one.U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 17

Finally, a narrower interpretatio n of § 1325(a)(2)

com ports with the genesis o f the p hrase “eludes exam ination

or inspection.” The statutory predecessor to § 132 5 ( a ) ( 2 ) broadly prohibited “enter[ing] without inspection.” 39 Stat.
at 889. Wh en Congress undertook to redraft the s tatute, it adopted language, including the verb “eludes,” fr o m th enextant Canadian law. S

ee Proposed Deportation Legislation: Hearing Before the H. Comm. o n Immigration & Naturalization
, 6 8 th C ong. 8–9 (1924) (statem ent of R ep. Wa tk i n s) (“They use that term in C anada, where I got that language.

. . . This section was taken f rom the Canadian law and i t h a ndles the situation satisfactorily, and our people up there want the sam e thing.”). And the Can a dian law upon which § 1325(a)(2) was m odeled im posed crim inal penalties

on “[a]ny person

. . . who at a port of entry eludes

exa mination by an o fficer.” Restriction o f Immigration: Hearings o n H.R. 5, H.R. 1 01, and H .R. 561 Before the H

. Comm. on Immigration & Naturalizatio n , 68th Cong. 680 (1924) (em

p hasis added); see Imm igration Act, 1910, 9 & 10 Edw. 7 c. 2 7, § 33(7) (Eng.), reprinted in R.S.C. 1927, c. 93 (Can.). 8 Th e crim inal act of “elud[ing] exam ination by an

8 T he operative Canadian law largely m irrors the prohibit i ons contained in § 1325(a):

A n y p erson who enters Canada except at a port of entry, o r who at a port of e n try eludes exam ination b y

an officer, or B o ard of Inquiry, o r who enters Canada by f orce or m isrepresentation o r stealth or otherwise contrary to any provision o f th i s Act, or who escapes from custody of an officer or from an i m m igrant station when d etained for a n y c ause under this Act, shall be guilty of an offence under this Act . . . .

Im m igration Act, 1910, 9 & 10 E dw. 7 c. 27, § 3 3(7) (Eng.), reprinted in R.S.C. 1927, c. 93 (Can.).U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 18

officer” was therefore understood at the tim e to occur “at a port of entry,” where exam inations took place.

Ult i mately, the g overnm ent’s reading of § 1325(a)(2) renders m uch of the rem ainder o f § 1325(a) inoperative f o r no apparent reason. Rather than believing that Congress drafted such a strange statutory schem e, we instead ascribe to § 1325(a)(2 ) a narrower m eaning, one that “m ake[s] sense rather than n onsense out of the corpus juris .” Maslenjak
, 137 S. Ct. at 1 926 (citation om itted). Together, § 1325(a)(1) and § 1325(a) ( 2) m ake it a crim e to enter the United States without subm itting to exam ination or inspection. But the two p rovisions operate separately b ased on the m anner of entry. Section 1325(a)(1) covers con du c t occurring at any tim e o r place other than “a designated port of entry when it is open f o r i n s p e c t i o n

. ” A l d a n a , 8 7 8 F

. 3 d a t 8 8 2

. Section 1 3 2 5 (a)(2), we now hold, covers the rest—conduct occurring at a d e signated port of entry that is open for inspection, where “exami n a tion [and] inspection by imm igration officers” take pla ce.

B

The governm ent advance s two additional argum ents to support its b road interpr e t a tion of § 1325(a)(2). Neither is persuasive.

First, the governm e n t asserts that its interpretation is supported by our decision in U n ited S ta tes v. Rincon-Jimenez
, 595 F.2d 1192 (9t h Ci r

. 1979). Not so. In Rincon-Jimenez
, “[t]he sole i ssue on appeal” was whether § 1325(a)(2) is “a continuing offense whic h t o l ls the statute of lim itations so long as [the defendant] rem ains present” in the United States. Id. at 1193. W e an s we r ed that q uestion in the negative. Id.U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 19

“Because the[] exam inations and inspections” referenced in § 1325(a)(2) “are to take place at the t i me of entry, a fixed point in tim e,” we held th a t th e lim itations period begins to run “as of the tim e of the illegal entry.” Id. at 1193–94.

Rincon-Jimenez did not purport to address the m anner o f entry necessary to v iolate § 1325(a)(2). To be sure, the defendant in that case “entered the Unite d St a t e s

. . . by traversing the beach between Tijuana and San Ysidro late at night,” and w e rem ark e d that “the offense described by § [1325(a)(2)] is consumm ated at the tim e an alien gains entry th r o ugh an unlawful point and does not subm it to [the required] exam inations.” Id. (em phasis a d d e d ). But the defendant did not challenge the sufficiency of the evi d ence supporting h is conviction, nor d id w e consider that question. “[C]ases are not precedential for p ro positions not considered,” United Sta t es v

. P epe , 895 F.3d 679, 688 (9th Cir. 2018), or for “ qu estions which ‘m erely lurk in the record,’” United Sta t es v

. Shabani
, 513 U.S. 10, 16 (1994) (citation and internal alteration om itted).

Second, the governm ent p oints out that § 1 325(a)(1) uses the word “enters,” while § 1 3 2 5(a)(2) does not. The term “entry” under the imm igration laws “is a term of art requiring

n ot o n ly physical presence in the United States but also freedom f rom official re straint.” U nited States v. ArguetaRosales
, 819 F. 3d 1 149, 1 158 (9th Cir. 2016). The governm e n t c o ntends that § 1325(a)(2) “does not include ‘enter’ and is thus free from the additional doctrines that term brings.” The d issent raises a sim ilar point. See Dissent at 28.

Far f rom supporting the governm ent’s interpreta ti on, h owe ver, this argum ent only highlights the problem with it

. As we have explained, the governm ent’s interpretation o fU N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 20

§ 1 3 2 5( a) (2) renders the entry offense in § 1325(a)(1) superflu ou s , b ecause there is no scenario in which an alien could “enter[]

. . . the United States” at a non-designated tim e

or p lace und e r § 1325(a)(1) without also “elud[ing]

exam ination or inspection” under § 1325(a)(2). I f, a s the governm ent suggests, § 1325(a)(2) does not require proof o f “entry,” 9 then the superfluity created by the governm ent’s interpretation would have a significant im p a ct—the governm ent would sim

ply charge all ali ens who illegally

cross into the United St a t e s under § 1325(a)(2), thereby elimin atin g entirely th e d o ctrin al req u irem ents accom

p a ny in g the wor d “enters” in § 1325(a)(1). This only confirm s that the governm ent’s reading of § 1 325(a)(2) is not the best one. Cf. Fowler v. United States
, 563 U .S. 668, 677 (2011) (noting

a “particular reluctance to ‘treat st a tu t ory term s’ as

‘ s ur p lusage’ ‘when the words describe an elem ent of a crim inal offense’” (quoting Ratzlafv. United States
, 5 1 0 U.S. 135, 140–41 (1994))).

IV

W e hold that to “elude[] exam ination or inspection by imm igration officers” in violation of § 1325(a)(2), the alien’s conduct m

ust occur at a designated port of entry that is open fo r inspection and exam ination. W e need not dec i d e precisely what conduc t at an open port of entry would constitute “e lud[ing] exam ination or inspection,” as the governm ent concedes in this c a s e that Corrales crossed into the United States “far fr om a port of entry.” Accordingly, Corrales’s conviction for violating § 1325(a)(2) is REVERSED

.

9 W e have not previously co n s i d ere d whether this proposition is correct, and we need not and do not do so here.U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 21

BYBEE, Circuit Judge, concurring:

I write separately to note my sym pathy fo r th e governm ent’s position in this case. F or the reasons given in the o p i n ion for the court, the governm ent’s reading o f 8 U.S.C. § 1325(a)(2) is wrong. But I understand its im pulse
to try to charge illegal entry under § 1325(a)(2) rather than under § 1325(a)(1). As I have previously explained, m u ch o f

o ur illegal-entry and illegal-reentry jurisprudence is a me s s

. See United States v. Argueta-Ro s ales
, 819 F.3d 1149, 1162–71 (9th Cir

. 2016) (Bybee, J., concurring in the judgm ent and dissenting as to everything else).

The challenge for the governm ent is that we have m ade § 1325(a)(1)—which m akes it a crim e for an alien to enter o r attem p t to enter the Unit e d St at es o utside an open port o f entry—in c r easingly difficult to enforce. There are two problem s. The first problem stem s largely from our understanding of the official res tr a int doctrine, which “has reached an absurd posit i o n .” Id. at 1162. T o prove that an alien has “ente r e d” the United States, the governm ent m ust prov e n ot o nly that the alien crossed into the United States, but also that the alien was at som e point “free fro m o fficial restraint.” Id. W e consider an alien under “official restraint”

so long as governm ent surveillance cam eras capture the alien crossing into the country, o r a border patr o l a g ent who observed the crossing through binoculars is able to m aintain continuous observation of the alien while pursuing him o r her. This has le d u s t o “som e very strange ‘how-m anyangels-are-dancing-on-the-head-of-a-pin’ inquiries.” S ee id.
at 1165–67 (discussing United States v

. Pacheco-Medina
, 212 F.3d 1162 (9th Cir. 2000), and its progeny).U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 22

The second problem is that to p r o v e that an alien

“ attempted illegal entry or reentry,” the g o v e rnm ent m ust prove that the alien had “the specific in t e n t to reenter ‘free from o fficial restraint’” b y “ any governm ent official.” Id. at 1168–69 (quoti n g United States v. Lombera-Valdovinos
, 429 F.3d 927, 929 (9th C ir. 2005)). Under this rule, an alien who “crosses into th e United States surreptitiously and outside a p o rt o f entry,” but who never achieves f reedom fr o m official restraint, cannot be convicted of attem pt e d illegal entry or re e n try a s long as the alien “tells border control that he cam e in hopes of rem aining under restraint by
any governm ent o fficial—even in a federal prison far from the border—once in the United States.” Id. at 1162. W e have
overturn e d a t least two convictions where the aliens, who

were captured in the act of crossing the border outside a port of entry, told border officials that they we r e entering the country in th e hopes o f being incarcerated. Since the aliens wished not to be free of offic ia l restraint, the governm ent couldn’t prove that th e y intended to be free of official restraint. S

ee id. at 1158 (reversing and rem anding for a new trial where the tr i er o f fact m ight have concluded that the alien w as delusional and seeking protection when he clim b ed the 1 0 -foot prim ary fence); Lombera-Valdovinos
, 429 F.3d at 928–29 (reversing the conviction where the alien crossed the prim ary fence and told th e o fficial he wished to go to jail). As I pointed out in Argueta-Rosales
, this “ h as left our law stuck in a catch-22 worthy of Joseph Heller: A liens who

c ross the border hoping to enter the United States free o f restraint m

ust be restrained, while aliens who cross hoping to be restrained by the United States m u st be freed. Under [this] regim e, no one gets what he wants, bu t s o me people go to jail, while everyone else goes hom e.” 819 F.3d at 1171.U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 23

In light of this doctrina l m inefield, I suspect that the governm ent i s charging aliens who would otherwise be charged with entering at a non-designated tim e or place under § 1325(a)(1) with eluding inspection under § 1 325(a)(2), which (according to the governm ent) does not suffer from the infirm ities of o ur “official restraint” and “specific i ntent to enter free from o f

ficial restraint” law. Today w e require the governm ent to m arch in a straight line when it c h arges violations of § 1325(a). But we should also clean u p our o wn

m ess under § 1325(a)(1) at the first opportunity.

FERNANDEZ, Circuit Judge, dissenting:

As the m ajority points out, Corrales a r g u e s that his conviction should be reversed because the e v i d ence was insufficient to convict him of the m isdem eanor of “elud[ing]

exam ination or inspection by imm igration officers.” 8 U.S.C. § 1325(a)(2). 1

The d istrict court determ ined that the elem ents of the crim e spelled out in § 1325(a) ( 2 ) we r e : (1) the accused was

an alien, and (2) the accused knowingly eluded exam ination

or inspection 2 by imm igration officers. It then held that the evidence p roved beyond a reasonable doubt that Corrales h ad

comm itted that offense. Corrales asserts that the district court erred because, as he sees it, the go v ernm ent was required to

1 Hereafte r, unless o therwise indicated, section num bers r efer to sections of Title 8 of the United States Code.

2 Hereafter, I will use the w ord “inspection” to refer to both inspection

or exam ination.U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 24

prove that he either eluded inspection at a port of entry, 3 or at least, eluded inspection “by an imm igration officer a t the

m om ent he entered the United States.” In that resp e c t, he insists that in order to “elude,” the alien m ust have s nuck through a port of entry, or if the alien entered the c o un try elsewhere, “snuck by” an officer who was on the scene at the

m om en t o f e n try. Because there was no evidence of those elem ents, he argues, his conviction cannot stand. My colleagues agree; I do not.

In i nterpreting statutes “[t]he starting point of [the] inquiry is the language of the statute itself.” United States v. Cabaccang
, 332 F.3d 622, 625 (9th Cir. 2003) (en banc). In so doing, we use canons of construction. Those canons:

help courts det erm ine the m eaning o f legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all o thers. W e have stated t ime and aga i n that courts m

ust presum e that a legislature says in a statute what it m eans and

m eans in a statute what it says th e r e

. Wh en the words of a statute are unam biguous, then, this fi r s t canon is also the last: “judicial inquiry is complete.”

Conn. Nat’l Bank v. Germain
, 503 U.S. 249, 253–54, 112 S. Ct. 1146, 1149 117 L. Ed. 2d 391 (1992) (internal citations

o m i tted). When I apply those canons and rules here, it i s imm ediately apparent to me that the sim ple words o f § 1 3 25(a)(2) will not bear Corrales’ attem pt to inser t th e

3 See United States v. Aldana
, 878 F .3d 877, 880, 882 (9th Cir. 2017) cert. denied, __ U.S.__, 139 S. Ct. 157, 202 L. Ed. 2d 96 (2018).U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 25

lim iting p hrase “at a port of entry.” Nothing in the enactm ent allows us to add that language to that s t a tute’s wording. In fact, if that lim itation were intended, C ongress would have included it just as it had included “at any tim e or place other than as designated by imm igration officers” in § 1325(a)(1). Cf

. Nken v. Holder
, 556 U .S. 418, 430, 129 S. Ct. 1749, 1759, 173 L. Ed. 2d 550 (2009). It did not do so. 4

Corrales’ other attem

pt to restrict the reach o f § 1325(a)(2) has m ore purchase, but also fails. He argues that “elude” requires that the alien m ust cunningly or slyly slip o r creep by (as he puts it, sneak by) an opponent. But, as I see i t , a l l the language m eans is that the alien has avoided o r evaded th o s e wh o would address h im or his p resence. I do agree that an alien who seeks to illegally cross the borders o f the United States will often show s o m e initiative,

4 The m ajority seeks to support its position by pointing t o Congress’ knowledge of an earlier Canadian statute that provided: “Any person

. . . who at a port of entry e l u de s ex am ination by an officer, or Board o f Inquiry,

. . . shall be guilty of an o ffence

. . . .” Im m igration Act, 1910, 9 & 10 Edw. 7 c. 27, § 33(7) (Eng.), reprinted in R.S.C. 1927, c. 93 ( Can.);

see also Restriction of Immigration: Hearings Before the H

. Comm. o n Immigration & Naturalization on H.R. 5

, H

. R. 101, and H

.R. 561, 68th C o ng

. 680 (1924) (text of Canadian statute); Proposed D eportation Legislation: Hearings Before the H. C o m m. o n Immigration & Naturalization
, 68th Cong. 8–9 (1925) (statem ent of Rep. Elton Watkins, Mem ber, H. Comm

. on Im

m igration & Naturalization, regarding origin o f la n g u a ge). But that knowledge points in t he other direction. Congress ultim ately adopted m

uch of the Canadian provision’s language, including the word “eludes.” See Act o f Mar. 4, 1929, Pub. L. No. 70-1018, § 2, 4 5 St a t

. 1 5 51, 1551. However, Congress om i tted the phrase “at a port o f entry”—essentially the very phrase that t he m ajority n ow inserts, even though Congress has never seen fit to re turn th e phrase to the statutory schem e.U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 26

resourcefulness, 5 desire to evade, 6 a nd even som e degree o f what can be seen as slyness or cunning, 7 in an attem pt to enter

unn o ticed. 8 In fact, if an alien desires to cross the Un i t e d St ates border without being stopped or detected by b arr i e rs (natural or otherwise), or technological devices, o r our alert imm igration a n d border patrol officers, som e of the characteristics captured b y the wo r d “elude” will be in that person’s m ak e up and p lans. B ut that just em phasizes the good sense of C ongress when it used that expansive word; it does not indicate that any of those possibilities restricts the

m eaning o f the statutory language or m akes it am biguous. Put otherwise, it sim

ply m eans that the alien’s characteristics and plans have enabled him to c ro s s i n to the United States illegally and without inspection, despite all of this country’s efforts to prevent that eventuality. As we have said, “[b]ecause these exam inations and inspections are to take place at the tim e of entry, a fixed point in tim e, this suggests that the offense described by § 1325(2) is consumm ated at the

5 S ee Encarta World English Dictionary 582 (1999) (“to escape from or avoid som ebody or som ething by cunning, skill, or resourcefulness”).

6 See 1 The Compact Edition of the Oxford English D i ctionary 8 4 7 (1st ed. 1971) (“[t]o evade com pliance with or fulfilm ent of (a law, o rder, dem and, r equest, obligation, etc.)”); 3 The Oxford English Dictionary 9 7 (1933) (sam e); 3 A New English Dictionary on H istorical Principles pt. I at 97 ( J a m es A. H. Murray & Henry Bradley eds., Oxford, The Clarendon Press 1891) (sam e).

7 See U nited States v. Oscar
, 496 F .2d 492, 494 (9 th C i r. 1 974). I n the situation at h and, the aliens i n question w ere clever enough to wrap blankets around their feet to conceal their tracks.

8 See Webster’s T

hird New International Dictionary 73 8 (Philip Babcock Gove ed., 1986) (“to escap e th e notice or perception of”); see also Webster’s New Collegiate Dictionary 267 (2d ed. 1951).U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 27

tim e an alien gains entry through an unlawful point and does
not subm it to these exam inations.” United States v. RinconJimenez
, 595 F.2d 1192, 1193–94 (9th Cir. 1979). In short, Corrales’ attem

pt to restrict the reach of § 1325(a)(2)’s language does not persuade m e.

But, says C orrales, if we do not restrict § 1325(a)(2) as he desires, the result will be that we have rendered § 1325(a)(1) redun d a n t and surplus. That is so, he insists, because if an alien could be convicted under § 1325(a)(2) for crossing the border at a place which is not a designated port of entry or a place where n o g o v e rnm ent officer is close at h and, any prosecution under § 1325(a)(1) would neces s arily be

encom passed by § 1325(a)(2), which would m ake the § 1325(a)(1) language surplusage. That arg u m e n t is interesting, but in my view it is not sufficient to earn Corrales the obsidional crown.

As I have already n o t ed
, if the statutory language is not truly am b iguous, that ends the m atter and we need not g o on to consider the c a n on that seeks to avoid redundancy. See Conn. Nat’l Bank
, 503 U. S. at 253–54, 112 S. Ct. at 1149. Moreover, e v e n i f th ere is redundancy, I am not gallied by that fact. It is not as if redundancy across statutes is a rarity. See id

. at 253, 112 S. Ct. at 1 14 9 ; s e e a lso Marx v. Gen. Revenue Co r

p

. , 568 U.S. 371, 385, 133 S. Ct. 1 166, 1177, 185 L. Ed. 2d 242 (2013). I do recognize that it is unusual to find redundancy within a s ingle statutory section, 9 b ut even then I see no basis for e n g aging in judicial legislation to art i fi c i a l ly force a restriction onto a statute that its language does not encom

p ass. Furtherm ore, it is probable that

9 See Marinello v. U

nited States
, __ U.S.

__ ,

_ _ , 1 38 S. Ct. 1101, 1107, 200 L. Ed. 2d 356 (2018).U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 28

Congress acted with cauti on because it was attem pting to rep air ex istin g im

m ig ration laws which f

ostered “[i]nequities, gaps, loopholes, and lax p ractices [that had] becom e apparent through the years.” H.R. Rep. No. 8 2 -1365, at 27 (1952). “In any event, our hesitancy to construe statutes to rend e r language superfluous does not require us to avoid surplusage
at all costs.” United States v. Atl. Research Corp.
, 551 U.S. 128, 137, 127 S. Ct. 2331, 2337, 168 L. Ed. 2d 28 (2007). In this particular area, Congress w ould h ave seen 1 0 the need for caution because, for exam ple, the seem ingly plain word “enters” that appears in § 1325(a)(1) could take on som ewhat

arcane legal m eanings. 1 1 As it turns out, those legal m eanings have created som e com plications and except io n s in a statutory regim e which is intended to im pose penal sanctions
upon those who illegally cross the borders of this country. 1 2 That would explain Congress’ use of statutory language that, if som ewhat redundant, is not actually surplusage in a pejorative sens e

. We can assum e that Congress sought to

assure relatively c om

plete coverage of the illegal b ordercrossing problem
, despite the unforeseen vagaries and

10 See Lorillard v. Pons
, 434 U.S. 575, 580–81, 98 S. Ct. 866, 870, 55 L. Ed. 2d 40 (1978).

11 S ee Ex parte Chow Chok
, 161 F

. 627, 630–31 (C.C.N

. D

. N.Y.), aff’d sub nom. Chow Chok v. U nited Sta t e s , 163 F. 1021 (2d Cir. 1908) (m em .) (per curiam ); see also Kaplan v. T od
, 267 U.S. 228, 230–31, 45 S. Ct. 257, 257–58, 69 L. Ed. 585 (1925).

1 2 S ee, e.g. , United States v. Vazquez-Hernandez
, 849 F.3d 1219, 1228 (9th Cir. 2017); United States v. A rgueta-Ros a l e s , 8 19 F.3d 1149, 1158–59 (9th Cir. 2 0 16); United States v. Cruz-Escoto
, 476 F.3d 1081, 1085–86 ( 9th Cir. 2007); United States v. L ombera-Valdovinos
, 429 F.3d 927, 929–30 (9th Cir. 2 005); United S tates v. Hernandez -H

e rr e ra , 273 F.3d 1213, 1218–19 (9th Cir. 2001); United States v. PachecoMedina , 212 F.3d 1162, 1164 (9th Cir. 2000).U N I T E D S TAT E S V

. C O R R AL E S -V AZ Q UE Z 29

vicissitudes of changing legal and phys i c al conditions in border protection and in m ethods of evading that protection. In other words, canons of interpretation are m eant to help us carry out congressional p urposes, not to ob s truct those
purposes. By the way, w ithout undue effort one can think o f situations where an alien’s illegal crossing of our b orders can fall into one or the other of the p rovisions, but Congress did
not need to dep e n d o n the strength or weakness of the interpretive prowess of o ne court or another. If § 1325(a)(1) and § 1325(a)(2) am ount to a form of overkill, so be it; they are what Congress provided.

Thus, again, I would reject Corrales’ assertion that m ore evidence was required to convict him under § 1 32 5 ( a ) (2). Instead, I would affirm
, despite Corr ales’ earnest, if Da e dalian, argum ent that he has discovered som e newly hatched e l e m ents of § 1 325(a)(2). In my opinion, those hatchlings are not actually el eme n ts o f the offense at all. They did not h ave to be proved beyond a reasonable doubt in order to convict Corrales. Therefore, I respectfully dissent.