FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ORACIO CORRALES-VAZQUEZ,

Defendant-Appellant.

No. 18-50206

D.C. No.

3:18-mj-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 Submitted June 12, 2019

Pasadena, California

Filed July 24, 2019

Before: Ferdinand F. Fernandez, Kim McLane Wardlaw,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee;

Concurrence by Judge Bybee;

Dissent by Judge Fernandez
2 UNITED STATES V. CORRALES-VAZQUEZ

SUMMARY*

Criminal Law

The panel reversed a misdemeanor conviction for eluding

examination or inspection by immigration officers in

violation of 18 U.S.C. § 1325(a)(2).

The panel held that an alien who crosses into the country

at a non-designated time or place is not guilty under

§ 1325(a)(2). Rather, to convict a defendant under

§ 1325(a)(2), the government must prove that the alien’s

criminal conduct occurred at a time and place designated for

“examination or inspection by immigration officers”—i.e., at

a port of entry open for inspection. Because the government

failed to make that showing, the panel reversed the

conviction.

Concurring, Judge Bybee wrote separately to note his

sympathy for the government’s position, considering the

difficulty caused by the court’s jurisprudence regarding

§ 1325(a)(1), which makes it a crime for an alien to enter the

United States outside an open port of entry.

Dissenting, Judge Fernandez wrote that he would affirm

because the elements of § 1325(a)(2) are that the accused was

an alien and that he knowingly eluded examination or

inspection by an immigration officer, and there is no

requirement that the accused either eluded inspection at a port

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. CORRALES-VAZQUEZ 3

of entry, or, at least, eluded inspection by an immigration

officer at the moment he entered the United States.

COUNSEL

Doug Keller (argued), Federal Defenders of San Diego Inc.,

San Diego, California, for Defendant-Appellant.

D. Benjamin Holley (argued), Assistant United States

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 makes it a crime for “[a]ny alien” to “enter[]

or attempt[] to enter the United States at any time or place

other than as designated by immigration officers,” 8 U.S.C.

§ 1325(a)(1), or to “elude[] examination or inspection by

immigration officers,” id. § 1325(a)(2). In this case, we

consider whether an alien who crosses into the country at a

non-designated time or place is guilty of “elud[ing]

examination or inspection by immigration officers” under

§ 1325(a)(2). We hold that the answer is no. To convict a

defendant under § 1325(a)(2), the government must prove

that the alien’s criminal conduct occurred at a time and place

designated for “examination or inspection by immigration

officers”—i.e., at a port of entry that is open for inspection. 
4 UNITED STATES V. CORRALES-VAZQUEZ

Because the government failed to make that showing in this

case, we reverse.

I

Oracio Corrales-Vazquez is a native and citizen of

Mexico who does not have authorization to enter the United

States. In June 2018, he crossed into the United States from

Mexico approximately 20 miles east of the port of entry at

Tecate, California. Several hours after Corrales crossed into

the country, a border patrol officer found him along with

three other individuals hiding in some brush approximately

four miles north of the international border. Corrales

admitted to the officer that he was not authorized to be in the

United States. He was arrested and charged with “elud[ing]

examination or inspection by immigration officers,” in

violation of 8 U.S.C. § 1325(a)(2).

The district court held a bench trial, during which

Corrales argued that an alien eludes examination or

inspection under § 1325(a)(2) only by crossing into the

country at a port of entry, a fact that the government failed to

prove in his case.1

If an alien could violate § 1325(a)(2) by

simply crossing into the United States without examination or

inspection, Corrales argued, then § 1325(a)(1)—which

specifically prohibits entering or attempting to enter the

United States at a non-designated time or place—“would be

superfluous.”

1 Notably, Corrales did not dispute in the district court that an alien

who enters the United States between ports of entry without authorization

would violate § 1325(a)(1). Corrales was charged, however, with

violating only § 1325(a)(2).
UNITED STATES V. CORRALES-VAZQUEZ 5

The district court disagreed with Corrales’s interpretation

of § 1325(a)(2), concluding that an alien “eludes examination

or inspection” by crossing into the United States “without

submitting to” an examination or inspection. After

determining that Corrales crossed into the United States

without undergoing an examination or inspection, the court

found Corrales guilty of violating § 1325(a)(2) and sentenced

him to time served. He now appeals his conviction.

II

On appeal, Corrales renews his argument that the

government failed to adduce sufficient evidence to prove that

he “elude[d] examination or inspection by immigration

officers” in violation of § 1325(a)(2). “We review challenges

to the sufficiency of evidence, including questions of

statutory interpretation, de novo.” United States v. Aldana,

878 F.3d 877, 880 (9th Cir. 2017), cert. denied, 139 S. Ct.

157 (2018).

III

Section 1325(a) provides in full:

Any alien who (1) enters or attempts to enter

the United States at any time or place other

than as designated by immigration officers, or

(2) eludes examination or inspection by

immigration officers, or (3) attempts to enter

or obtains entry to the United States by a

willfully false or misleading representation or

the willful concealment of a material fact,

shall, for the first commission of any such

offense, be fined under Title 18 or imprisoned
6 UNITED STATES V. CORRALES-VAZQUEZ

not more than 6 months, or both, and, for a

subsequent commission of any such offense,

be fined under Title 18, or imprisoned not

more than 2 years, or both.

Congress first enacted a version of this provision in 1952

as part of the Immigration and Nationality Act (INA), Pub. L.

No. 82-414, § 275, 66 Stat. 163, 229. But its origins date

back much farther. Beginning in the early twentieth century,

our immigration laws required deportation for certain aliens

who entered the United States “at any time or place other than

as designated by immigration officials, . . . or who enter[ed]

without inspection.” Immigration Act of 1917, Pub. L. No.

64-301, § 19, 39 Stat. 874, 889.2In 1929, Congress decided

that aliens who “enter the United States surreptitiously”

should be subject to not only deportation but also criminal

penalties, H.R. Rep. No. 70-2418, at 7–8 (1929), and revised

the prohibitions in the 1917 statute to be “broad enough to

cover entry in any manner,” id. at 4. The new criminal statute

thus made it a misdemeanor for any alien to “enter[] the

United States at any time or place other than as designated by

immigration officials or elude[] examination or inspection by

immigration officials, or obtain[] entry to the United States

by a willfully false or misleading representation or the willful

concealment of a material fact.” Act of Mar. 4, 1929, Pub. L.

No. 70-1018, § 2, 45 Stat. 1551, 1551 (codified at 8 U.S.C.

§ 180a (Supp. III 1929)). Congress replicated the 1929

2

See also Act of Mar. 3, 1891, ch. 551, § 8, 26 Stat. 1084, 1085–86

(criminalizing the act of “knowingly or negligently land[ing] or

permit[ting] to land any alien immigrant at any place or time other than

that designated by the inspection officers”); Act of Mar. 3, 1903, ch. 1012,

§ 18, 32 Stat. 1213, 1217–18 (same); Act of Feb. 20, 1907, ch. 1134, § 18,

34 Stat. 898, 904 (same).
UNITED STATES V. CORRALES-VAZQUEZ 7

statute’s three substantive prohibitions with minimal

alteration in 1952 in the INA, and in 1990 added liability for

“attempt[ing] to enter” under § 1325(a)(1) and § 1325(a)(3). 

See Immigration Act of 1990, Pub. L. No. 101-649,

§ 543(b)(2), 104 Stat. 4978, 5059.

We are concerned here with what it means for an alien to

“elude[] examination or inspection by immigration officers”

under § 1325(a)(2).3

In the government’s view, any alien

who crosses into the United States without examination or

inspection necessarily “eludes examination or inspection,”

even if the alien crosses miles away from any place where

those processes occur. Corrales, by contrast, contends that

the conduct criminalized by § 1325(a)(2) can occur only at

places and times designated for examination or inspection by

immigration officers. Taking into account the statutory text

and context, we reject the government’s reading of

§ 1325(a)(2) and hold that the crime of “elud[ing]

examination or inspection by immigration officers” can be

committed only where and when examinations or inspections

take place—at open ports of entry.

A

“We begin, as usual, with the statutory text.” Maslenjak

v. United States, 137 S. Ct. 1918, 1924 (2017). And because

the relevant phrase—“eludes examination or inspection by

immigration officers,” 8 U.S.C. § 1325(a)(2)—“has remained

unchanged” since it was first used in 1929, it “presumptively

3 The term “examination” in this provision refers to medical

examinations, see 8 U.S.C. § 1222(b), while “inspection” refers to

background screening, searches, and other prerequisites for admission, see

id. § 1225(a)(3), (d).
8 UNITED STATES V. CORRALES-VAZQUEZ

retains its original meaning,” Whitfield v. United States,

135 S. Ct. 785, 788 (2015).

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

or inspection by immigration officers”—occur, as they

always have, at “designated ports of entry” that are “staffed

by immigration 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, 608 (9th Cir. 1940); Kaneda v. United

States, 278 F. 694, 696–97 (9th Cir. 1922).4 And as a literal

matter, entering the United States without examination or

inspection, regardless of where or how, could be described as

“elud[ing]” those processes if, as the government urges, the

word “elude” is defined broadly to mean “evade compliance

with or fulfilment of” an obligation, 3 Oxford English

Dictionary 97 (1st ed. 1933) (“OED First”). Several

4 To be sure, under the INA, an immigration inspection can

technically occur anywhere along the border and at any time, because any

alien “who arrives in the United States”—“whether or not at a designated

port of arrival”—is “deemed . . . an applicant for admission,” 8 U.S.C.

§ 1225(a)(1), and all “applicants for admission . . . shall be inspected by

immigration officers,” id. § 1225(a)(3). This means that the border patrol

agent who discovered Corrales technically performed an “inspection” at

the time he was found. But we have interpreted “[t]he language in

[§ 1325(a)(2)]” to refer to the “immigration procedures conducted . . . at

the time of entry, a fixed point in time.” 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 made in person

to an immigration officer at a U.S. port-of-entry when the port is open for

inspection . . . .”). As a result, inspections occurring after that fixed point

in time would not fall within the “inspection” contemplated in

§ 1325(a)(2). Indeed, were it otherwise, then no alien who is ultimately

found and inspected by an immigration 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 492, 494 (9th

Cir. 1974).
UNITED STATES V. CORRALES-VAZQUEZ 9

considerations, however, lead us to reject that expansive

interpretation.

To begin with, not every “word in a statute . . . extend[s]

to the outer limits of its definitional possibilities,” and the

government’s interpretation of the word “eludes” “sits

uncomfortably with common usage.” Abuelhawa v. United

States, 556 U.S. 816, 820 (2009) (quoting Dolan v. U.S.

Postal Serv., 546 U.S. 481, 486 (2006)). In 1929, as today,

the verb “elude” was more commonly used to mean “avoid

slyly, by artifice, stratagem, or dexterity,” or “escape from in

a covert manner.” Webster’s New International Dictionary

713 (1st ed. 1930); see also, e.g., Concise Oxford Dictionary

of Current English 368 (2d ed. 1929) (“[e]scape adroitly

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

World College Dictionary 455 (2d ed. 1970) (“avoid or

escape from by quickness, cunning, etc.,” or “escape

detection, notice, or understanding by”); Webster’s Third

New International Dictionary 738 (2002) (“avoid slyly or

adroitly,” or “escape the notice or perception of”). To

“elude” something would not usually mean to simply avoid

it—the avoidance generally contemplates some form of

“escape,” whether through “quickness [or] cunning[ness].” 

United States v. Oscar, 496 F.2d 492, 494 (9th Cir. 1974)

(citation omitted).5 For example, “in the case of five seamen

5

Indeed, had Congress wanted to use a broader verb such as “avoid,”

it easily could have done so, as it did in other immigration-related statutes. 

See, e.g., 18 U.S.C. § 139 (1926) (repealed 1940) (imposing criminal

penalties on any admitted citizen who “knowingly den[ies] that he has

been so admitted, with the intent to evade or avoid any duty or liability
10 UNITED STATES V. CORRALES-VAZQUEZ

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

one might say that the men “managed to elude the guards

stationed in and about the vessel” by escaping the ship

without the guards’ detection. The Tuscania, 42 F.2d 168,

169 (2d Cir. 1930) (emphasis added). But it would have been

quite odd to say that the men “eluded” the guards if the men

had avoided the port altogether and instead traveled by

airplane. To elude, in other words, generally contemplates a

risk of exposure to, and subsequent escape from, the object

being eluded. Applying that narrower definition here, an

alien “eludes examination or inspection” only if the alien’s

conduct occurs at a time and place where the alien is at risk

of undergoing those processes in the first place. Because

those processes occur at open and operating ports of entry,

the alien’s criminal conduct—the “elud[ing]”—must occur

there as well. This would include, for example, an alien who

hides in the trunk of a vehicle passing through a port of entry,

or an alien who crosses through a port of entry on foot and

then sneaks by the officers conducting inspections or

examinations. But it would not include an alien who crosses

the border miles away from any place where those processes

occur.

More importantly, even if the government’s broader

interpretation of the phrase “eludes examination or

inspection” might be plausible in isolation, “statutes are not

imposed or required by law” (emphasis added)). Or Congress could have

replicated the language already in use in the predecessor to § 1325(a),

which prohibited “enter[ing] without inspection.” 39 Stat. at 889. 

Congress’s decision not to use either of these “ready alternative[s]” in

§ 1325(a)(2) “indicates that Congress did not in fact want” this particular

provision of the statute to be as broad as the government claims. Advocate

Health Care Network v. Stapleton, 137 S. Ct. 1652, 1659 (2017) (citing

Lozano v. Montoya Alvarez, 572 U.S. 1, 16 (2014)).
UNITED STATES V. CORRALES-VAZQUEZ 11

read as a collection of isolated phrases.” Abuelhawa,

556 U.S. at 819. “It is a fundamental canon of statutory

construction that the words of a statute must be read in their

context and with a view to their place in the overall statutory

scheme.” Sturgeon v. Frost, 136 S. Ct. 1061, 1070 (2016)

(quoting Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 101

(2012)). And in this case, “statutory context compels a more

circumscribed reading.” McDonnell v. United States, 136 S.

Ct. 2355, 2367 (2016).

When § 1325(a) is read as a whole, the “overall statutory

scheme,” Sturgeon, 136 S. Ct. at 1070 (citation

omitted)—and § 1325(a)(2)’s place within it—becomes

evident. As described above, § 1325(a)(2) follows

§ 1325(a)(1), which separately makes it a crime to “enter[] or

attempt[] to enter the United States at any time or place other

than as designated by immigration officers.” And

§ 1325(a)(2) precedes § 1325(a)(3), which makes it a crime

to enter or attempt to enter the United States “by a willfully

false or misleading representation or the willful concealment

of a material fact.” Considered together, these three

provisions—which carry identical criminal penalties—are

“broad enough to cover entry in any manner.” H.R. Rep. No.

70-2418, at 4. Section 1325(a)(1) covers aliens who enter or

attempt to enter outside of an open port of entry. See Aldana,

878 F.3d at 882. Section 1325(a)(2) covers aliens who cross

through an open port of entry, but elude examination or

inspection in doing so. And § 1325(a)(3) covers aliens who

cross through an open port of entry and submit to

examination and inspection, but obtain entry (or attempt to

obtain entry) through willful misrepresentation or

concealment. The statute works as a seamless whole.
12 UNITED STATES V. CORRALES-VAZQUEZ

The government’s reading of the statute disrupts its

careful structure. If, as the government argues, merely

crossing into the United States without examination or

inspection violates § 1325(a)(2), regardless of time or place,

then much of the highly specific language in § 1325(a)(1)

would be superfluous—any alien who “enters . . . the United

States at any [non-designated] time or place” under

§ 1325(a)(1) would also be guilty of “elud[ing] examination

or inspection” under § 1325(a)(2). The government’s

interpretation thus violates “the ‘cardinal principle’ of

interpretation that courts ‘must give effect, if possible, to

every clause and word of 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. 816, 824 (2018) (“[O]ne of the most basic

interpretive canons [is] that a statute should be construed so

that effect is given to all its provisions, so that no part will be

inoperative or superfluous, void or insignificant.” (internal

alteration omitted) (quoting Corley v. United States, 556 U.S.

303, 314 (2009))).6

Indeed, if § 1325(a)(2) is as broad as the government says

it is, then at the time of § 1325(a)’s enactment—before

“attempt[]” was added in 1990, see 104 Stat. at

5059—§ 1325(a)(1) would have been not only superfluous

but subsumed entirely within § 1325(a)(2). In other words,

6 The dissent argues that we should not “consider the canon that seeks

to avoid redundancy” because, in its view, § 1325(a)(2) “is not truly

ambiguous.” Dissent at 27. But as the Supreme Court has explained in

rejecting this precise argument, ignoring “the antisuperfluousness canon”

merely “because ‘there is nothing ambiguous about the language’” of a

particular provision in isolation “violates ‘the cardinal rule that a statute

is to be read as a whole.’” Corley, 556 U.S. at 314 n.5 (quoting King v.

St. Vincent’s Hosp., 502 U.S. 215, 221 (1991)).
UNITED STATES V. CORRALES-VAZQUEZ 13

every violation of § 1325(a)(1) for entering at a nondesignated time or place would have also been a violation of

§ 1325(a)(2) for eluding examination or inspection. The

government’s interpretation therefore also runs afoul of the

related principle of interpretation “that ‘general language of

a statutory provision, although broad enough to include it,

will not be held to apply to a matter specifically dealt with in

another part of the same enactment.’” Bloate v. United

States, 559 U.S. 196, 207–08 (2010) (internal alteration

omitted) (quoting D. Ginsberg & Sons v. Popkin, 285 U.S.

204, 208 (1932)); see RadLAX Gateway Hotel, LLC v.

AmalgamatedBank, 566 U.S. 639, 645–46 (2012) (explaining

how the “general/specific canon” acts with the antisurplusage canon to avoid “the superfluity of a specific

provision that is swallowed by [a] general one”).

Although neither of these interpretive principles

establishes “an absolute rule,” they do provide “a strong

indication of statutory meaning,” especially when, as here,

“the two [provisions] are interrelated and closely positioned,

both in fact being parts of the same statutory scheme.” 

RadLAX, 566 U.S. at 645–46 (internal alteration omitted)

(quoting HCSC–Laundry v. United States, 450 U.S. 1, 6

(1981) (per curiam)). For example, in Maslenjak, the

Supreme Court rejected an interpretation of a provision

making it a crime to “procure[], contrary to law,

naturalization” that would have swept in any person who

“obtain[s] citizenship without the requisite legal

qualifications.” 137 S. Ct. at 1925 & n.2 (quoting 18 U.S.C.

§ 1425(a)). The Court observed that such an expansive

interpretation, although perhaps “plausible” in isolation,

would have rendered “superfluous” the “highly specific

language” in an adjoining provision that made it a crime “to

‘procure or obtain naturalization’ for ‘[one]self or another
14 UNITED STATES V. CORRALES-VAZQUEZ

person not entitled thereto.’” Id. at 1925 n.2 (alteration in

original) (quoting 18 U.S.C. § 1425(b)). “Rather than reading

those words to do no work, in violation of ordinary canons of

statutory construction,” the Court understood “Congress to

have defined two separate crimes.” Id. Similar examples

abound. See, e.g., Marinello v. United States, 138 S. Ct.

1101, 1106–07 (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 “numerous misdemeanors” in the Code that

“specifically” dealt with willful violations of certain tax

requirements (citation omitted)); United States v. Chase,

135 U.S. 255, 260 (1890) (declining to interpret the noun

“writing” in a criminal statute to include mailed letters in

light of the “separate and distinct clause” in the statute

“specifically” dealing with letters); United States v.

Cabaccang, 332 F.3d 622, 627 (9th Cir. 2003) (en banc)

(rejecting the government’s interpretation of 21 U.S.C.

§ 952(a) under which “any conduct proscribed by the first

clause of § 952(a) also would have been covered by the

statute’s broader second clause when § 952 was enacted in

1970, rendering the first clause of the statute superfluous”).

These basic interpretive principles control this case. The

government concedes that, under its broad interpretation of

§ 1325(a)(2), there is no set of facts that would have been

criminal under § 1325(a)(1) but not under § 1325(a)(2) at the

time of the statute’s enactment—any alien who entered at a

non-designated time or place in violation of § 1325(a)(1)

would have also eluded examination orinspection in violation

of § 1325(a)(2). Because § 1325(a)(1) “specifically deal[s]

with” entry at a non-designated time or place, the broader

language in § 1325(a)(2) should “not be held to apply to” that
UNITED STATES V. CORRALES-VAZQUEZ 15

same conduct. RadLAX, 566 U.S. at 646 (quoting D.

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

To be sure, § 1325(a)(1) now criminalizes “attempts to

enter,” while § 1325(a)(2) does not expressly mention

“attempt.” So § 1325(a)(1), as it exists today, may not be

totally subsumed within § 1325(a)(2). But “attempt” was not

added to § 1325(a)(1) until 1990, see 104 Stat. at 5059, and

“later laws that ‘do not seek to clarify an earlier enacted

general term’ and ‘do not depend for their effectiveness upon

clarification, or a change in the meaning of an earlier statute,’

are ‘beside the point’ in reading the first enactment.” 

Gutierrez v. Ada, 528 U.S. 250, 257–58 (2000) (quoting

Almendarez-Torres v. United States, 523 U.S. 224, 237

(1998)); cf. New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539

(2019) (“It’s a ‘fundamental canon of statutory construction’

that words generally should be ‘interpreted as taking their

ordinary meaning at the time Congress enacted the statute.’”

(citation and internal alterations omitted)). And as the

Supreme Court has explained, the 1990 amendments to the

INA—and this section of the amendments in

particular—were not “intended to change, or to clarify, the

fundamental relationship” between the INA’s substantive

provisions. Almendarez-Torres, 523 U.S. at 233–34. The

1990 amendments 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

government’s interpretation still runs afoul of “the

presumption ‘that statutory language is not superfluous,’”

McDonnell, 136 S. Ct. at 2369 (citation omitted), because the

actual entry offense in § 1325(a)(1) would serve no role in the

statute—every alien who “enters . . . the United States at any

[non-designated] time or place” under § 1325(a)(1) would
16 UNITED STATES V. CORRALES-VAZQUEZ

also “elude[] examination or inspection” under § 1325(a)(2). 

Rather than reading the “highly specific language” in

§ 1325(a)(1) “to do no work, in violation of ordinary canons

of statutory construction, we understand Congress to have

defined two separate crimes” in § 1325(a)(1) and (2). 

Maslenjak, 137 S. Ct. at 1925 n.2.

Confirming our understanding is the fact that § 1325(a)(1)

and § 1325(a)(2) are connected by the word “or,” a term that

is “almost always disjunctive, that is, the words it connects

are to be given separate meanings.” Loughrin, 573 U.S. at

357 (quoting United States v. Woods, 571 U.S. 31, 45

(2013)). The disjunctive connector further demonstrates that

§ 1325(a)(1) and § 1325(a)(2) prohibit different conduct. Yet

the government would have us read § 1325(a)(2) to prohibit

much of the same conduct already prohibited by § 1325(a)(1). 

Construing § 1325(a)(1) as “a mere subset of” § 1325(a)(2),

as the government urges, “disregard[s] what ‘or’ customarily

means” and “effectively reads ‘or’ to mean ‘including’—a

definition foreign to any dictionary we know of.” Id.7

7 The government raises a superfluity problem of its own, asserting

that even under a narrower reading of § 1325(a)(2), the statute would still

overlap with 19 U.S.C. § 1459, which imposes criminal penalties on

“individuals arriving in the United States” who intentionally fail to “enter

. . . at a border crossing point” or fail to “present themselves . . . for

inspection.” 19 U.S.C. § 1459(a), (g). We are unpersuaded. Section 1459

is located in the title of the U.S. Code dealing with customs, so it says

little about the scope of § 1325(a)(2), which is in a separate title dealing

with immigration. Indeed, § 1459 applies to all “individuals,” not just

“aliens.” And in any event, overlap “is not uncommon in criminal

statutes.” Loughrin, 573 U.S. at 358 n.4. What is uncommon, however,

is reading one specific criminal provision to be subsumed by an adjoining

one.
UNITED STATES V. CORRALES-VAZQUEZ 17

Finally, a narrower interpretation of § 1325(a)(2)

comports with the genesis of the phrase “eludes examination

or inspection.” The statutory predecessor to § 1325(a)(2)

broadly prohibited “enter[ing] without inspection.” 39 Stat.

at 889. When Congress undertook to redraft the statute, it

adopted language, including the verb “eludes,” from thenextant Canadian law. See Proposed Deportation Legislation:

Hearing Before the H. Comm. on Immigration &

Naturalization, 68th Cong. 8–9 (1924) (statement of Rep.

Watkins) (“They use that term in Canada, where I got that

language. . . . This section was taken from the Canadian law

and it handles the situation satisfactorily, and our people up

there want the same thing.”). And the Canadian law upon

which § 1325(a)(2) was modeled imposed criminal penalties

on “[a]ny person . . . who at a port of entry eludes

examination by an officer.” Restriction of Immigration:

Hearings on H.R. 5, H.R. 101, and H.R. 561 Before the H.

Comm. on Immigration & Naturalization, 68th Cong. 680

(1924) (emphasis added); see Immigration Act, 1910, 9 & 10

Edw. 7 c. 27, § 33(7) (Eng.), reprinted in R.S.C. 1927, c. 93

(Can.).8 The criminal act of “elud[ing] examination by an

8 The operative Canadian law largely mirrors the prohibitions

contained in § 1325(a):

Any person who enters Canada except at a port of

entry, or who at a port of entry eludes examination by

an officer, or Board of Inquiry, or who enters Canada

by force or misrepresentation or stealth or otherwise

contrary to any provision of this Act, or who escapes

from custody of an officer or from an immigrant station

when detained for any cause under this Act, shall be

guilty of an offence under this Act . . . .

Immigration Act, 1910, 9 & 10 Edw. 7 c. 27, § 33(7) (Eng.), reprinted in

R.S.C. 1927, c. 93 (Can.).
18 UNITED STATES V. CORRALES-VAZQUEZ

officer” was therefore understood at the time to occur “at a

port of entry,” where examinations took place.

Ultimately, the government’s reading of § 1325(a)(2)

renders much of the remainder of § 1325(a) inoperative for no

apparent reason. Rather than believing that Congress drafted

such a strange statutory scheme, we instead ascribe to

§ 1325(a)(2) a narrower meaning, one that “make[s] sense

rather than nonsense out of the corpus juris.” Maslenjak,

137 S. Ct. at 1926 (citation omitted). Together, § 1325(a)(1)

and § 1325(a)(2) make it a crime to enter the United States

without submitting to examination or inspection. But the two

provisions operate separately based on the manner of entry. 

Section 1325(a)(1) covers conduct occurring at any time or

place other than “a designated port of entry when it is open

for inspection.” Aldana, 878 F.3d at 882. 

Section 1325(a)(2), we now hold, covers the rest—conduct

occurring at a designated port of entry that is open for

inspection, where “examination [and] inspection by

immigration officers” take place.

B

The government advances two additional arguments to

support its broad interpretation of § 1325(a)(2). Neither is

persuasive.

First, the government asserts that its interpretation is

supported by our decision in United States v. Rincon-Jimenez,

595 F.2d 1192 (9th Cir. 1979). Not so. In Rincon-Jimenez,

“[t]he sole issue on appeal” was whether § 1325(a)(2) is “a

continuing offense which tolls the statute of limitations so

long as [the defendant] remains present” in the United States. 

Id. at 1193. We answered that question in the negative. Id.
UNITED STATES V. CORRALES-VAZQUEZ 19

“Because the[] examinations and inspections” referenced in

§ 1325(a)(2) “are to take place at the time of entry, a fixed

point in time,” we held that the limitations period begins to

run “as of the time of the illegal entry.” Id. at 1193–94.

Rincon-Jimenez did not purport to address the manner of

entry necessary to violate § 1325(a)(2). To be sure, the

defendant in that case “entered the United States . . . by

traversing the beach between Tijuana and San Ysidro late at

night,” and we remarked that “the offense described by

§ [1325(a)(2)] is consummated at the time an alien gains

entry through an unlawful point and does not submit to [the

required] examinations.” Id. (emphasis added). But the

defendant did not challenge the sufficiency of the evidence

supporting his conviction, nor did we consider that question. 

“[C]ases are not precedential for propositions not

considered,” United States v. Pepe, 895 F.3d 679, 688 (9th

Cir. 2018), or for “questions which ‘merely lurk in the

record,’” United States v. Shabani, 513 U.S. 10, 16 (1994)

(citation and internal alteration omitted).

Second, the government points out that § 1325(a)(1) uses

the word “enters,” while § 1325(a)(2) does not. The term

“entry” under the immigration laws “is a term of art requiring

not only physical presence in the United States but also

freedom from official restraint.” United States v. ArguetaRosales, 819 F.3d 1149, 1158 (9th Cir. 2016). The

government contends that § 1325(a)(2) “does not include

‘enter’ and is thus free from the additional doctrines that term

brings.” The dissent raises a similar point. See Dissent at 28.

Far from supporting the government’s interpretation,

however, this argument only highlights the problem with it. 

As we have explained, the government’s interpretation of
20 UNITED STATES V. CORRALES-VAZQUEZ

§ 1325(a)(2) renders the entry offense in § 1325(a)(1)

superfluous, because there is no scenario in which an alien

could “enter[] . . . the United States” at a non-designated time

or place under § 1325(a)(1) without also “elud[ing]

examination or inspection” under § 1325(a)(2). If, as the

government suggests, § 1325(a)(2) does not require proof of

“entry,”9

then the superfluity created by the government’s

interpretation would have a significant impact—the

government would simply charge all aliens who illegally

cross into the United States under § 1325(a)(2), thereby

eliminating entirely the doctrinal requirements accompanying

the word “enters” in § 1325(a)(1). This only confirms that

the government’s reading of § 1325(a)(2) is not the best one. 

Cf. Fowler v. United States, 563 U.S. 668, 677 (2011) (noting

a “particular reluctance to ‘treat statutory terms’ as

‘surplusage’ ‘when the words describe an element of a

criminal offense’” (quoting Ratzlaf v. United States, 510 U.S.

135, 140–41 (1994))).

IV

We hold that to “elude[] examination or inspection by

immigration officers” in violation of § 1325(a)(2), the alien’s

conduct must occur at a designated port of entry that is open

for inspection and examination. We need not decide

precisely what conduct at an open port of entry would

constitute “elud[ing] examination or inspection,” as the

government concedes in this case that Corrales crossed into

the United States “far from a port of entry.” Accordingly,

Corrales’s conviction for violating § 1325(a)(2) is

REVERSED.

9 We have not previously considered whether this proposition is

correct, and we need not and do not do so here.
UNITED STATES V. CORRALES-VAZQUEZ 21

BYBEE, Circuit Judge, concurring:

I write separately to note my sympathy for the

government’s position in this case. For the reasons given in

the opinion for the court, the government’s reading of

8 U.S.C. § 1325(a)(2) is wrong. But I understand its impulse

to try to charge illegal entry under § 1325(a)(2) rather than

under § 1325(a)(1). As I have previously explained, much of

our illegal-entry and illegal-reentry jurisprudence is a mess. 

See United States v. Argueta-Rosales, 819 F.3d 1149,

1162–71 (9th Cir. 2016) (Bybee, J., concurring in the

judgment and dissenting as to everything else).

The challenge for the government is that we have made

§ 1325(a)(1)—which makes it a crime for an alien to enter or

attempt to enter the United States outside an open port of

entry—increasingly difficult to enforce. There are two

problems. The first problem stems largely from our

understanding of the official restraint doctrine, which “has

reached an absurd position.” Id. at 1162. To prove that an

alien has “entered” the United States, the government must

prove not only that the alien crossed into the United States,

but also that the alien was at some point “free from official

restraint.” Id. We consider an alien under “official restraint”

so long as government surveillance cameras capture the alien

crossing into the country, or a border patrol agent who

observed the crossing through binoculars is able to maintain

continuous observation of the alien while pursuing him or

her. This has led us to “some very strange ‘how-manyangels-are-dancing-on-the-head-of-a-pin’ inquiries.” See id.

at 1165–67 (discussing United States v. Pacheco-Medina,

212 F.3d 1162 (9th Cir. 2000), and its progeny).
22 UNITED STATES V. CORRALES-VAZQUEZ

The second problem is that to prove that an alien

“attempted illegal entry or reentry,” the government must

prove that the alien had “the specific intent to reenter ‘free

from official restraint’” by “any government official.” Id. at

1168–69 (quoting United States v. Lombera-Valdovinos,

429 F.3d 927, 929 (9th Cir. 2005)). Under this rule, an alien

who “crosses into the United States surreptitiously and

outside a port of entry,” but who never achieves freedom

from official restraint, cannot be convicted of attempted

illegal entry or reentry as long as the alien “tells border

control that he came in hopes of remaining under restraint by

any government official—even in a federal prison far from

the border—once in the United States.” Id. at 1162. We have

overturned at 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 were entering the

country in the hopes of being incarcerated. Since the aliens

wished not to be free of official restraint, the government

couldn’t prove that they intended to be free of official

restraint. See id. at 1158 (reversing and remanding for a new

trial where the trier of fact might have concluded that the

alien was delusional and seeking protection when he climbed

the 10-foot primary fence); Lombera-Valdovinos, 429 F.3d at

928–29 (reversing the conviction where the alien crossed the

primary fence and told the official he wished to go to jail). 

As I pointed out in Argueta-Rosales, this “has left our law

stuck in a catch-22 worthy of Joseph Heller: Aliens who

cross the border hoping to enter the United States free of

restraint must be restrained, while aliens who cross hoping to

be restrained by the United States must be freed. Under [this]

regime, no one gets what he wants, but some people go to

jail, while everyone else goes home.” 819 F.3d at 1171.
UNITED STATES V. CORRALES-VAZQUEZ 23

In light of this doctrinal minefield, I suspect that the

government is charging aliens who would otherwise be

charged with entering at a non-designated time or place under

§ 1325(a)(1) with eluding inspection under § 1325(a)(2),

which (according to the government) does not suffer from the

infirmities of our “official restraint” and “specific intent to

enter free from official restraint” law. Today we require the

government to march in a straight line when it charges

violations of § 1325(a). But we should also clean up our own

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

FERNANDEZ, Circuit Judge, dissenting:

As the majority points out, Corrales argues that his

conviction should be reversed because the evidence was

insufficient to convict him of the misdemeanor of “elud[ing]

examination or inspection by immigration officers.” 8 U.S.C.

§ 1325(a)(2).1

The district court determined that the elements of the

crime spelled out in § 1325(a)(2) were: (1) the accused was

an alien, and (2) the accused knowingly eluded examination

or inspection2

by immigration officers. It then held that the

evidence proved beyond a reasonable doubt that Corrales had

committed that offense. Corrales asserts that the district court

erred because, as he sees it, the government was required to

1 Hereafter, unless otherwise indicated, section numbers refer to

sections of Title 8 of the United States Code.

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

or examination.
24 UNITED STATES V. CORRALES-VAZQUEZ

prove that he either eluded inspection at a port of entry,3or at

least, eluded inspection “by an immigration officer at the

moment he entered the United States.” In that respect, he

insists that in order to “elude,” the alien must have snuck

through a port of entry, or if the alien entered the country

elsewhere, “snuck by” an officer who was on the scene at the

moment of entry. Because there was no evidence of those

elements, he argues, his conviction cannot stand. My

colleagues agree; I do not.

In interpreting 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 determine the meaning of

legislation, and in interpreting a statute a court

should always turn first to one, cardinal canon

before all others. We have stated time and

again that courts must presume that a

legislature says in a statute what it means and

means in a statute what it says there. When

the words of a statute are unambiguous, then,

this first 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

omitted). When I apply those canons and rules here, it is

immediately apparent to me that the simple words of

§ 1325(a)(2) will not bear Corrales’ attempt to insert the

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).
UNITED STATES V. CORRALES-VAZQUEZ 25

limiting phrase “at a port of entry.” Nothing in the enactment

allows us to add that language to that statute’s wording. In

fact, if that limitation were intended, Congress would have

included it just as it had included “at any time or place other

than as designated by immigration 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 attempt to restrict the reach of

§ 1325(a)(2) has more purchase, but also fails. He argues that

“elude” requires that the alien must cunningly or slyly slip or

creep by (as he puts it, sneak by) an opponent. But, as I see

it, all the language means is that the alien has avoided or

evaded those who would address him or his presence. I do

agree that an alien who seeks to illegally cross the borders of

the United States will often show some initiative,

4 The majority seeks to support its position by pointing to Congress’

knowledge of an earlier Canadian statute that provided: “Any person . . .

who at a port of entry eludes examination by an officer, or Board of

Inquiry, . . . shall be guilty of an offence . . . .” Immigration 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. on

Immigration & Naturalization on H.R. 5, H.R. 101, and H.R. 561, 68th

Cong. 680 (1924) (text of Canadian statute); Proposed Deportation

Legislation: Hearings Before the H. Comm. on Immigration &

Naturalization, 68th Cong. 8–9 (1925) (statement of Rep. Elton Watkins,

Member, H. Comm. on Immigration & Naturalization, regarding origin of

language). But that knowledge points in the other direction. Congress

ultimately adopted much of the Canadian provision’s language, including

the word “eludes.” See Act of Mar. 4, 1929, Pub. L. No. 70-1018, § 2, 45

Stat. 1551, 1551. However, Congress omitted the phrase “at a port of

entry”—essentially the very phrase that the majority now inserts, even

though Congress has never seen fit to return the phrase to the statutory

scheme.
26 UNITED STATES V. CORRALES-VAZQUEZ

resourcefulness,5desire to evade,6and even some degree of

what can be seen as slyness or cunning,7in an attempt to enter

unnoticed.8In fact, if an alien desires to cross the United

States border without being stopped or detected by barriers

(natural or otherwise), or technological devices, or our alert

immigration and border patrol officers, some of the

characteristics captured by the word “elude” will be in that

person’s makeup and plans. But that just emphasizes the

good sense of Congress when it used that expansive word; it

does not indicate that any of those possibilities restricts the

meaning of the statutory language or makes it ambiguous. 

Put otherwise, it simply means that the alien’s characteristics

and plans have enabled him to cross into 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 examinations and inspections are to take

place at the time of entry, a fixed point in time, this suggests

that the offense described by § 1325(2) is consummated at the

5

See Encarta World English Dictionary 582 (1999) (“to escape from

or avoid somebody or something by cunning, skill, or resourcefulness”).

6

See 1 The Compact Edition of the Oxford English Dictionary 847

(1st ed. 1971) (“[t]o evade compliance with or fulfilment of (a law, order,

demand, request, obligation, etc.)”); 3 The Oxford English Dictionary 97

(1933) (same); 3 A New English Dictionary on Historical Principles pt.

I at 97 (James A. H. Murray & Henry Bradley eds., Oxford, The

Clarendon Press 1891) (same).

7

See United States v. Oscar, 496 F.2d 492, 494 (9th Cir. 1974). In

the situation at hand, the aliens in question were clever enough to wrap

blankets around their feet to conceal their tracks.

8

See Webster’s Third New International Dictionary 738 (Philip

Babcock Gove ed., 1986) (“to escape the notice or perception of”); see

also Webster’s New Collegiate Dictionary 267 (2d ed. 1951).
UNITED STATES V. CORRALES-VAZQUEZ 27

time an alien gains entry through an unlawful point and does

not submit to these examinations.” United States v. RinconJimenez, 595 F.2d 1192, 1193–94 (9th Cir. 1979). In short,

Corrales’ attempt to restrict the reach of § 1325(a)(2)’s

language does not persuade me.

But, says Corrales, if we do not restrict § 1325(a)(2) as he

desires, the result will be that we have rendered § 1325(a)(1)

redundant 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 no government officer is close at hand, any

prosecution under § 1325(a)(1) would necessarily be

encompassed by § 1325(a)(2), which would make the

§ 1325(a)(1) language surplusage. That argument is

interesting, but in my view it is not sufficient to earn Corrales

the obsidional crown.

As I have already noted, if the statutory language is not

truly ambiguous, that ends the matter and we need not go on

to consider the canon that seeks to avoid redundancy. See

Conn. Nat’l Bank, 503 U.S. at 253–54, 112 S. Ct. at 1149. 

Moreover, even if there 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 1149; see also Marx v. Gen.

Revenue Corp., 568 U.S. 371, 385, 133 S. Ct. 1166, 1177,

185 L. Ed. 2d 242 (2013). I do recognize that it is unusual to

find redundancy within a single statutory section,9but even

then I see no basis for engaging in judicial legislation to

artificially force a restriction onto a statute that its language

does not encompass. Furthermore, it is probable that

9

See Marinello v. United States, __ U.S. __, __, 138 S. Ct. 1101,

1107, 200 L. Ed. 2d 356 (2018).
28 UNITED STATES V. CORRALES-VAZQUEZ

Congress acted with caution because it was attempting to

repair existing immigration laws which fostered “[i]nequities,

gaps, loopholes, and lax practices [that had] become apparent

through the years.” H.R. Rep. No. 82-1365, at 27 (1952). “In

any event, our hesitancy to construe statutes to render

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 would have seen10

the need for

caution because, for example, the seemingly plain word

“enters” that appears in § 1325(a)(1) could take on somewhat

arcane legal meanings.11 As it turns out, those legal meanings

have created some complications and exceptions in a

statutory regime which is intended to impose penal sanctions

upon those who illegally cross the borders of this country.12

That would explain Congress’ use of statutory language that,

if somewhat redundant, is not actually surplusage in a

pejorative sense. We can assume that Congress sought to

assure relatively complete coverage of the illegal bordercrossing 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 See Ex parte Chow Chok, 161 F. 627, 630–31 (C.C.N.D.N.Y.),

aff’d sub nom. Chow Chok v. United States, 163 F. 1021 (2d Cir. 1908)

(mem.) (per curiam); see also Kaplan v. Tod, 267 U.S. 228, 230–31, 45 S.

Ct. 257, 257–58, 69 L. Ed. 585 (1925).

12

See, e.g., United States v. Vazquez-Hernandez, 849 F.3d 1219, 1228

(9th Cir. 2017); United States v. Argueta-Rosales, 819 F.3d 1149,

1158–59 (9th Cir. 2016); United States v. Cruz-Escoto, 476 F.3d 1081,

1085–86 (9th Cir. 2007); United States v. Lombera-Valdovinos, 429 F.3d

927, 929–30 (9th Cir. 2005); United States v. Hernandez-Herrera,

273 F.3d 1213, 1218–19 (9th Cir. 2001); United States v. PachecoMedina, 212 F.3d 1162, 1164 (9th Cir. 2000).
UNITED STATES V. CORRALES-VAZQUEZ 29

vicissitudes of changing legal and physical conditions in

border protection and in methods of evading that protection. 

In other words, canons of interpretation are meant to help us

carry out congressional purposes, not to obstruct those

purposes. By the way, without undue effort one can think of

situations where an alien’s illegal crossing of our borders can

fall into one or the other of the provisions, but Congress did

not need to depend on the strength or weakness of the

interpretive prowess of one court or another. If § 1325(a)(1)

and § 1325(a)(2) amount to a form of overkill, so be it; they

are what Congress provided.

Thus, again, I would reject Corrales’ assertion that more

evidence was required to convict him under § 1325(a)(2). 

Instead, I would affirm, despite Corrales’ earnest, if

Daedalian, argument that he has discovered some newly

hatched elements of § 1325(a)(2). In my opinion, those

hatchlings are not actually elements of the offense at all. 

They did not have to be proved beyond a reasonable doubt in

order to convict Corrales. Therefore, I respectfully dissent.