FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OMAR ARGUETA-ROSALES,

Defendant-Appellant.

Nos. 14-50384

14-50385

D.C. Nos.

3:14-cr-00244-LAB-1

3:10-cr-04572-LAB-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted

June 3, 2015—Pasadena, California

Filed April 12, 2016

Before: Raymond C. Fisher and Jay S. Bybee, Circuit

Judges, and Elizabeth E. Foote, District Judge.*

Opinion by Judge Fisher;

Partial Concurrence and Partial Dissent by Judge Bybee

* The Honorable Elizabeth E. Foote, United States District Judge for the

Western District of Louisiana, sitting by designation.
2 UNITED STATES V. ARGUETA-ROSALES

SUMMARY**

Criminal Law

The panel vacated a conviction and sentence for

attempted illegal reentry, and vacated the resulting revocation

of probation and sentence, in a case in which the defendant

presented evidence that he crossed into the United States in

a delusional state, believing he was being chased by Mexican

gangs, and with the specific intent solely to place himself into

the protective custody of United States officials.

The panel held that the district court – which ruled that

the mens rea element of attempted illegal reentry under

8 U.S.C. § 1326 requires only that the defendant knew he was

crossing into the United States and that he was not privileged

to do so – misapplied United States v. Lombera-Valdovinos,

429 F.3d 927 (9th Cir. 2005), in which this court held that

because attempted illegal reentry is a specific intent crime

that requires proof of intent to enter the country free from

official restraint, it was impossible to convict a previously

deported alien for attempted illegal reentry when he crosses

the border with the intent only to be imprisoned.

The panel held that the error was not harmless. The panel

clarified that where, as here, there is contradictory evidence

regarding the defendant’s intent, it is for the trier of fact to

determine whether the government has proven unlawful

intent beyond a reasonable doubt. The panel also clarified

that the government need not prove that entry free from

** 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. ARGUETA-ROSALES 3

official restraint was the defendant’s sole intent. The panel

concluded that it is not clear beyond a reasonable doubt the

district court would have found the defendant guilty absent

its misapprehension of the specific intent element. The panel

remanded for proceedings consistent with this opinion.

Judge Bybee concurred in the judgment and dissented as

to everything else. Because the district court failed to apply

the standard supplied by Lombera-Valdovinos, he concurred

in the judgment vacating the conviction and remanding for

retrial. He wrote that he is convinced, however, that

Lombera-Valdovinos was wrongly decided and that our

understanding of when an alien is “free from official

restraint” has reached an absurd position.

COUNSEL

Doug Keller, Federal Defenders of San Diego, Inc., San

Diego, California, for Defendant-Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter,

Assistant United States Attorney, Chief, Appellate Section,

Criminal Division, and Francis A. DiGiacco (argued),

Assistant United States Attorney, San Diego, California, for

Plaintiff-Appellee.
4 UNITED STATES V. ARGUETA-ROSALES

OPINION

FISHER, Circuit Judge:

At trial on the charge of attempted illegal reentry into the

United States, Omar Argueta-Rosales presented evidence that

he crossed into the United States in a delusional state,

believing he was being chased by Mexican gangs, and with

the specific intent solely to place himself into the protective

custody of United States officials. The district court found

this evidence plausible, but nonetheless found Argueta guilty

of the charged offense, ruling the mens rea element of

attempted illegal reentry under 8 U.S.C. § 1326 requires the

government to prove only that the defendant knew he was

crossing into the United States and that he was not privileged

to do so. In United States v. Lombera-Valdovinos, 429 F.3d

927, 928 (9th Cir. 2005), however, we held it was

“[im]possible to convict a previously deported alien for

attempted illegal reentryinto the United States under 8 U.S.C.

§ 1326 when he crosses the border with the intent only to be

imprisoned . . . , because attempted illegal reentry is a

specific intent crime that requires proof of intent to enter the

country free from official restraint.” Because the district

court found Argueta guilty under an erroneous legal standard,

we vacate his conviction and remand for a new trial or other

proceedings consistent with this opinion.

I

Omar Argueta-Rosales was born in Mexico in 1981. 

When he was five, his mother migrated to the United States

and he was left to the care of his grandparents in Mexico. He

lived with his grandparents for four years before reuniting

with his mother in Los Angeles, California. He lived with his
UNITED STATES V. ARGUETA-ROSALES 5

mother in Los Angeles until he was 16 years old. An

immigration judge ordered him removed in 2006.

In 2010, Argueta was apprehended at the border while

attempting to unlawfully return to the United States. In 2011,

he pled guilty to attempting to illegally reenter the United

States, in violation of 8 U.S.C. § 1326, and received a

sentence of five years’ probation. A standard term of his

probation provided he “shall not commit another federal,

state, or local crime.”

After returning to Mexico, Argueta began to abuse

methamphetamine. A few days before the border crossing

that is the subject of this appeal, he was beaten by gang

members in Mexico. In the days that followed, according to

Dr. Bruce Yanofsky, the court-appointed psychologist who

testified at trial, Argueta became “increasingly paranoid, he

was worried, he started to see people that were following him

and was really concerned about his life.”

[H]e was living out on the streets, running

around until he got to the point where he felt

that his life was in danger and then obviously

. . . proceeded to try to cross the border with

the account that he gave me that he had the

cell phone, that it was a land line – well, it

was connected to a line in the United States,

he was trying to call for help, he was calling

9-1-1 repeatedly because he wanted law

enforcement to intervene because he had tried

the Mexican law enforcement to help him and

they didn’t do anything for him. So in this

state of panic, paranoia, and just losing
6 UNITED STATES V. ARGUETA-ROSALES

control of what was going on in his life,

fearing for his life, he ended up in the border.

No cell phone was found on Argueta’s person at the time of

his arrest, however.

Argueta crossed the United States border from Mexico,

about one and one-half miles west of the San Ysidro,

California, port of entry, on November 29, 2013. At the

border, Argueta climbed over the approximately 10-foot

primary fence, which placed him in the United States. He

was at that point between the primary fence and the

secondary fence, which is approximately 50 yards north of

the primary fence and about 20 feet high. Argueta was

spotted by Border Patrol Agent Oscar Alvarado when

Argueta was approximately 15 yards north of the primary

fence. Argueta was walking, at a normal speed, in a north

and westbound direction. Agent Alvarado radioed another

officer to intercept Argueta.

Border Patrol Agent Jeffrey Schwinn responded. Agent

Schwinn approached in his vehicle to approximately 20 feet

away, exited his vehicle and shouted “Hey” to try to get

Argueta’s attention. When Argueta did not respond, Agent

Schwinn approached Argueta. Argueta turned around and

looked at Schwinn, at which point Schwinn asked him in

Spanish where he was born. Argueta said Mexico City. 

Schwinn asked Argueta what country he was a citizen of, and

he said Mexico, so Schwinn proceeded to ask him if he had

any immigration documents allowing him to enter the United

States, and he said no. At that point, Argueta began to walk

towards Schwinn, and Schwinn told him to head back south

and return to Mexico. When Argueta did not take that

suggestion, Agent Schwinn told him he was going to place
UNITED STATES V. ARGUETA-ROSALES 7

him under arrest, and Argueta said something to the effect of

“you do what you got to do.”

About two hours after his arrest, two border patrol agents

interviewed Argueta at the Imperial Beach Border Patrol

Station in San Diego. During the beginning of the interview,

which was conducted in English, Argueta appeared calm and

rational. Early in the interview, Argueta asked to make a

statement, saying “[i]t’s important. It relates to what

happened at my house.” One of the agents told Argueta he

would be able to make a statement later. At one point during

the interview, one of the agents asked Argueta, “When did

you last enter the United States,” and this discussion

followed:

A. Last was five years ago. Five years ago,

almost five and a half.

Q. How did you enter the United States?

A. Trying to go through the line walking.

Q. Through where?

A. I was walking through Calexico, from

Mexicali to Calexico.

Q. The port of entry?

A. Exactly.

Q. What is your destination in the United

States, city and state?
8 UNITED STATES V. ARGUETA-ROSALES

A. Los Angeles, California.

Q. Do you have any . . . fear of persecution or

torture should you be removed from the

United States?

A. Yes, I do.

The agents did not follow up on Argueta’s claim of

persecution.

Toward the end of the interview, when the agents asked

Argueta whether he wanted to say anything else, Argueta

made apparently delusional statements for two minutes,

referring to people who were in the cell with him even though

the only people there were Argueta and the two border patrol

agents:

A. Just that I come – the people who I’m with

right now in the tank are the people who were

at my house.

Q. In here in the cell?

A. (Inaudible.) And also, I wanted to ask you

guys if it’s coincidental or (unintelligible). 

And that’s when one of the (unintelligible)

started asking me what’s up. I told them I

noticed I recognize the skinny guy, the one

they put at the end. (Unintelligible) the other

one with white shorts (unintelligible). He

started taking his hand out. Before that I told

the skinny dude, hey, I know you, bro. It

hurts me, because that’s my wife, you know.
UNITED STATES V. ARGUETA-ROSALES 9

But then again, I don’t know what’s going

on. Like I said, I was going nuts over there. 

I couldn’t remember. I had to ask my wife. I

mean, there’s some pictures I seen. I can’t

recognize certain people (unintelligible). I

was going through it and not only

(unintelligible) that’s the people that are after

me. (Unintelligible.)

In February 2014, Argueta was charged with attempting

to reenter the United States, in violation of 8 U.S.C. § 1326(a)

and (b).1 He was separately charged with violating the terms

 

1

 Section 1326(a) states:

(a) In general

Subject to subsection (b) of this section, any alien who

–

(1) has been denied admission, excluded, deported, or

removed or has departed the United States while an

order of exclusion, deportation, or removal is

outstanding, and thereafter

(2) enters, attempts to enter, or is at any time found in,

the United States, unless (A) prior to his reembarkation

at a place outside the United States or his application

for admission from foreign contiguous territory, the

Attorney General has expressly consented to such

alien's reapplying for admission; or (B) with respect to

an alien previously denied admission and removed,

unless such alien shall establish that he was not

required to obtain such advance consent under this

chapter or any prior Act,
10 UNITED STATES V. ARGUETA-ROSALES

of his 2011 probation. The district court appointed Dr.

Yanofsky to determine whether Argueta was competent to

stand trial. After Argueta was found competent, the case

proceeded to a bench trial. At trial, Dr. Yanofsky testified

that, on the day Argueta climbed over the border fence, he

was suffering from a substance-induced psychosis caused by

heavy methamphetamine use. According to Dr. Yanofsky,

Argueta was operating under a delusion that individuals were

chasing him and trying to kill him, prompting him to climb

over the border fence. An expert proffered by the

government, Dr. Mark Kalish, disagreed with Dr. Yanofsky’s

conclusion that Argueta was suffering from substanceinduced psychosis.

At the close of evidence, the parties presented closing

arguments to the district court. The elements of the crime of

attempted illegal reentry under § 1326 are: “(1) the defendant

had the purpose, i.e., conscious desire, to reenter the United

States without the express consent of the Attorney General;

(2) the defendant committed an overt act that was a

substantial step towards reentering without that consent;

(3) the defendant was not a citizen of the United States;

(4) the defendant had previously been lawfully denied

admission, excluded, deported or removed from the United

States; and (5) the Attorney General had not consented to the

defendant’s attempted reentry.” United States v. GracidasUlibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc).

shall be fined under Title 18, or imprisoned not more

than 2 years, or both.

Section 1326(b) provides enhanced penalties for certain defendants.
UNITED STATES V. ARGUETA-ROSALES 11

Here, only the first element was in dispute. Relying on

United States v. Lombera-Valdovinos, 429 F.3d 927 (9th Cir.

2005), Argueta’s counsel argued “the government cannot

prove specific intent beyond a reasonable doubt because the

evidence in this case showed that Mr. Argueta entered the

United States under the psychotic belief that he was being

chased by armed gunmen in Mexico, but he specifically –

while that may be the motive, he specifically intended to

enter to find protection” by turning himself in to the border

patrol. According to Argueta’s counsel, Argueta was not

guilty of the crime of attempted illegal reentry if the evidence

showed that his “specific intent . . . was to go into custody.” 

Counsel maintained that, under Lombera-Valdovinos, “if

someone specifically intends to enter the United States to go

into custody, they’re affirmatively not guilty under the

attempted reentry charge of [§] 1326.”

The district court rejected Argueta’s argument. In the

court’s view, the specific intent element of attempted illegal

entry would be satisfied so long as Argueta “knew he was

vaulting the fence into the United States and he knew that that

was wrong.” The court rejected the proposition that Argueta

could negate the specific intent element merely by showing

he intended to enter into custody, disagreeing with Argueta’s

argument that “the reason of coming over here to turn

yourself in is enough to defeat conscious purpose.” 

According to the court, if the defense was “right that the

desire to turn yourself in, even if it’s based on a delusion, is

enough to defeat conscious purpose, the appellate court will

tell us. I don’t think it is.”

Having rejected Argueta’s legal argument, the court

proceeded to find the specific intent element proven beyond

a reasonable doubt because Argueta (1) knew he was crossing
12 UNITED STATES V. ARGUETA-ROSALES

into the United States and (2) knew he did not have

permission to do so, facts Argueta did not dispute. 

Accordingly, the court found Argueta guilty of the crime of

attempted illegal reentry. In addition, solely on the basis of

that conviction, the court also found Argueta guilty of

violating the terms of his 2011 probation. The court later

sentenced Argueta to 21 months in custody on the attempted

illegal reentry conviction and an additional 12 months in

custody on the probation violation, to be followed by three

years of supervised release. Argueta timely appealed both

judgments, and the two appeals have been consolidated in this

court.

II

Conclusions of law following a bench trial are reviewed

de novo. See Oswalt v. Resolute Indus., Inc., 642 F.3d 856,

859 (9th Cir. 2011); cf. United States v. Knapp, 120 F.3d 928,

930 (9th Cir. 1997) (“If a jury instruction misstates elements

of a statutory crime, the standard of review is . . . de novo.”).

III

A

This case is controlled byLombera-Valdovinos, where we

held it was “[im]possible to convict a previously deported

alien for attempted illegal reentry into the United States under

8 U.S.C. § 1326 when he crosses the border with the intent

only to be imprisoned . . . , because attempted illegal reentry

is a specific intent crime that requires proof of intent to enter

the country free from official restraint.” 429 F.3d at 928.
UNITED STATES V. ARGUETA-ROSALES 13

In Lombera-Valdovinos, a border patrol agent was

patrolling the border between the United States and Mexico,

sitting in a marked border patrol vehicle between the primary

fence, which marks the actual border, and the secondary

fence, located about 100 feet north of the primary fence. See

id. With binoculars, the agent saw the defendant and four or

five others standing on the Mexico side of the border, about

200 yards away from the agent. See id. The agent then

looked away for about 15 seconds; when he turned back, he

saw the defendant, alone and now on the United States side

of the primary fence, walking directly toward him. See id.

When the defendant continued to walk toward the agent, the

agent drove toward him. See id. When they met, the

defendant stated, “I want to see an immigration judge,”

admitted to being a citizen of Mexico and, when asked if he

had any legal basis for being present in the United States,

answered “No.” Id. He also said he “wished to go back to

jail.” Id. The agent then searched and arrested the defendant. 

See id.

Because the defendant had been deported before, he was

charged with attempted illegal reentry, in violation of § 1326. 

See id. After a jury returned a guilty verdict, the defendant

moved for judgment of acquittal under Federal Rule of

Criminal Procedure 29. See id. at 927–28. The district court

denied the motion, and the defendant appealed. See id.

Reviewing the evidence in the light most favorable to the

government, we held that no rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt. See id. at 930.

We explained that, “for purposes of § 1326, ‘enter’ has a

narrower meaning than its colloquial usage.” Id. at 928. “An

alien has not entered the United States under § 1326 unless he
14 UNITED STATES V. ARGUETA-ROSALES

does so ‘free from official restraint.’” Id. (quoting GracidasUlibarry, 231 F.3d at 1191 n.3). Attempted illegal reentry, in

turn, “requires proof of specific intent, more particularly the

specific intent ‘to reenter without consent.’” Id. at 929

(citation omitted) (quoting United States v. Leos-Maldonado,

302 F.3d 1061, 1063 (9th Cir. 2002)). Official restraint, we

further explained, “encompasses restraint by any government

official,” not just officials of the Department of Homeland

Security. Id.2 Because all of the evidence showed “the

defendant’s intent was to be taken into custody,” id. at 930

n.3, we held that “no rational trier of fact could conclude . . .

the defendant was guilty of the specific intent crime of

attempted illegal reentry,” id. at 930.

As the government now concedes, the district court

misapplied Lombera-Valdovinos here.3In order to convict

Argueta, the government was required to prove beyond a

2 At trial in Lombera-Valdovinos, the government argued “official

restraint” encompassed only restraint by officials of the Department of

Homeland Security (DHS), not other forms of official custody. See

429 F.3d at 929–30. In the government’s view, if the defendant crossed

into the United States with the intent to go to jail, then he had the specific

intent to enter free from official restraint. See id. at 929. We rejected that

argument in Lombera-Valdovinos, see id. at 929–30, and the government

does not reassert it here. Indeed, the government conceded the point on

appeal in Lombera-Valdovinos. See id. at 929.

3 Although the government on appeal has conceded the district court

misapplied Lombera-Valdovinos, government counsel said nothing in the

district court while Argueta’s counsel and the court debated the proper

legal standard. Had the government pointed out at that time that Argueta

was articulating the correct legal standard for the specific intent element

of attempted illegal reentry, the court might have reached a verdict free

from legal error. The government’s failure to so advise the court at that

time is regrettable.
UNITED STATES V. ARGUETA-ROSALES 15

reasonable doubt that Argueta crossed into the United States

with the specific “intent to enter the country free from official

restraint.” Id. at 928. It was not sufficient that Argueta knew

he was crossing into the United States and knew he did not

have permission to do so. If Argueta’s sole “intent was to be

taken into custody,” then “no rational trier of fact could

conclude [he] was guilty of the specific intent crime of

attempted illegal reentry.” Id. at 930 & n.3. The district

court’s verdict thus rested on an erroneous legal standard.

B

When a district court in a bench trial has made a legal

error regarding the elements of an offense, the error is

reviewed using the same harmless error standard that would

apply to an erroneous jury instruction. See Wilson v. United

States, 250 F.2d 312, 323–24 (9th Cir. 1957). “An error in

describing an element of the offense in a jury instruction is

harmless only if it is clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty absent

the error.” United States v. Liu, 731 F.3d 982, 992 (9th Cir.

2013) (internal quotation marks omitted); see also United

States v. Driggers, 559 F.3d 1021, 1025–26 (9th Cir. 2009). 

Accordingly, the question here is whether it is clear beyond

a reasonable doubt that the district court would have found

Argueta guilty absent the error. The government argues the

district court’s error was harmless on two independent

theories. We address them in turn, finding neither persuasive.

1

The government argues Lombera-Valdovinos applies only

when there is no evidence of anything other than the intent to

be taken into custody. In the government’s view, where, as
16 UNITED STATES V. ARGUETA-ROSALES

here, there is substantial evidence of the defendant’s specific

intent to enter the United States free from official restraint,

Lombera-Valdovinos “is of no import,” even if there is also

substantial evidence of the intent to enter into custody. We

disagree, and take this opportunity to clarify LomberaValdovinos.

It is true that in Lombera-Valdovinos we said “this case

presents a rare set of factual circumstances where there is no

evidence of anything other than the intent to be taken into

custody.” 429 F.3d at 930 n.3 (emphasis added). We made

that statement, however, in the course of reviewing the denial

of the defendant’s Rule 29 motion for judgment of acquittal. 

See id. at 928, 930. Under that standard, we were required to

affirm the defendant’s conviction so long as any rational trier

of fact could have found he possessed the specific intent to

enter free from official restraint. See id. Thus, by pointing to

the complete absence of contrary evidence, we were simply

applying that highly deferential standard of review. We did

not hold that any evidence of an unlawful intent would

compel a conviction. We now clarify that where, as here,

there is contradictory evidence regarding the defendant’s

intent, it is for the trier of fact to determine whether the

government has proven unlawful intent beyond a reasonable

doubt. The government’s contention that LomberaValdovinos is limited to cases in which there is no evidence

of a specific intent to enter the United States free from

official restraint is without merit. We reject the government’s

argument the district court’s error was harmless on this

ground.

That being said, we also clarify that the government need

not prove that entry free from official restraint was the

defendant’s sole intent. The government must prove only that
UNITED STATES V. ARGUETA-ROSALES 17

Argueta had a specific intent to enter the United States free

from official restraint, not that this was his only purpose. See

Lombera-Valdovinos, 429 F.3d at 928 (noting the defendant

“cross[ed] the border with the intent only to be imprisoned”

(emphasis added)); cf. United States v. Shabban, 612 F.3d

693, 696 & n.1 (D.C. Cir. 2010) (“As Shabban concedes,

evidence that a defendant had multiple intentions does not

mean there was insufficient evidence of the requisite statutory

intent.”); United States v. Julian, 427 F.3d 471, 485 (7th Cir.

2005) (“A defendant need not facilitate someone’s interstate

or foreign travel with the sole or principal intent that he

engage in prostitution in order to be liable under section

2421, so long as prostitution was a significant motive.”);

United States v. Fairchild, 122 F.3d 605, 612 (8th Cir. 1997)

(holding that “only one of the [defendant’s] intentions must

meet the elements of the offense”); 1 Wayne R. LaFave,

Substantive Criminal Law § 5.2 (2d ed. 2015) (“It may be

said that, so long as the defendant has the intention required

by the definition of the crime, it is immaterial that he may

also have had some other intention.”). Similarly, if Argueta

“actually intended to sneak into the country, and changed his

plans only when he was spotted” by the border patrol, he

again would be guilty. Lombera-Valdovinos, 429 F.3d at 930.

2

In the alternative, the government contends the error was

harmless because there was overwhelming evidence of

Argueta’s intent to enter free from official restraint. We

again disagree.

There was, to be sure, evidence that Argueta crossed the

border with the specific intent to enter free from official

restraint. He scaled a border fence in an area in which,
18 UNITED STATES V. ARGUETA-ROSALES

according to one border patrol agent’s testimony, there was

a 50–50 chance of evading detection. If he had wanted to

turn himself in, he could have presented himself at the port of

entry located less than two miles away. When he crossed into

the United States, Argueta was walking away from Agent

Alvarado rather than toward him. When Agent Schwinn first

shouted to Argueta, he did not stop. In his initial encounter

with Agent Schwinn, Argueta did not say he was seeking

protective custody. When asked his destination during his

post-arrest interview, Argueta identified Los Angeles.

Evidence also pointed in the other direction, however. 

Argueta crossed into the United States in broad daylight in a

heavily patrolled area. When Agent Alvarado spotted him on

the United States side of the primary fence, he was walking

normally, not running. When he was confronted by Agent

Schwinn, Argueta did not run. When Agent Schwinn offered

Argueta the opportunity to climb the fence back into Mexico

rather than being arrested, Argueta declined the offer –

evidence fully consistent with Argueta’s contention that he

crossed into the United States to enter protective custody. Dr.

Yanofsky testified Argueta was under a drug-induced

psychosis, suffering from delusions, and had entered the

United States to seek protection, testimony the district court

credited. Argueta told Dr. Yanofsky he made numerous calls

to 9-1-1 before reaching the United States border in a further

attempt to obtain protection from United States authorities

(although no phone was found on Argueta’s person when he

was arrested). In his post-arrest interview, Argueta referred

to people chasing him and said he was in fear of persecution

and torture; and Argueta’s bizarre behavior at the post-arrest

interview confirmed his delusional state. Although Argueta

did not cross at the port of entry, the district court found this

was consistent with Argueta’s perceptions of an immediate
UNITED STATES V. ARGUETA-ROSALES 19

threat to this life. Although Argueta told the agents his

destination was Los Angeles, he could have easily

misunderstood this question in context as referring to his

earlier crossing into the United States.

For these reasons, it is not clear beyond a reasonable

doubt the district court would have found Argueta guilty

absent its misapprehension of the specific intent element. 

The error therefore was not harmless.4

IV

In his concurring opinion, Judge Bybee suggests our court

should use this case as a vehicle to reconsider en banc three

sets of circuit precedents: (1) our holdings in cases such as

United States v. Oscar, 496 F.2d 492, 493–94 (9th Cir. 1974),

and United States v. Pacheco-Medina, 212 F.3d 1162,

1163–66 (9th Cir. 2000), that, for immigration purposes,

“entry” is a term of art that requires not only physical

presence in the United States but also freedom from official

restraint; (2) our holding in United States v. GracidasUlibarry, 231 F.3d 1188, 1193 (9th Cir. 2000) (en banc), that

attempted illegal reentry under 8 U.S.C. § 1326 is a specific

intent crime; and (3) our holding in United States v. LomberaValdovinos, 429 F.3d 927, 929 (9th Cir. 2005), that “official

restraint” encompasses restraint bygovernment officials other

than those of the Department of Homeland Security (DHS). 

In our view, each of these precedents rests on a solid footing.

4 Argueta argues remand is not required because the district court has

already found a reasonable doubt as to whether he crossed into the United

States with the specific intent to enter the country free from official

restraint. Having reviewed the record, we are not persuaded the district

court has made such a finding. We therefore reject Argueta’s argument.
20 UNITED STATES V. ARGUETA-ROSALES

A

Judge Bybee would have us reconsider our longstanding

view that, for immigration purposes, “entry” is a term of art

requiring not only physical presence in the United States but

also freedom from official restraint. As Judge Bybee

recognizes, this principle was established more than a century

ago, see, e.g., Ex parte Chow Chok, 161 F. 627, 628–31

(N.D.N.Y.), aff’d 163 F. 1021 (2d Cir. 1908), and has long

been recognized not only by this court but also by the

Supreme Court, see Kaplan v. Tod, 267 U.S. 228, 230–31

(1925); United States v. Ju Toy, 198 U.S. 253, 263 (1905),

other federal circuits, see, e.g., Dimova v. Holder, 783 F.3d

30, 39 (1st Cir. 2015); Correa v. Thornburgh, 901 F.2d 1166,

1171–72 (2d Cir. 1990); Parra-Rojas v. Att’y Gen. U.S.,

747 F.3d 164, 170 (3d Cir. 2014); United States v. AngelesMascote, 206 F.3d 529, 531 (5th Cir. 2000); Vitale v. INS,

463 F.2d 579, 581–82 (7th Cir. 1972); Nyirenda v. INS,

279 F.3d 620, 623 (8th Cir. 2002), and the Board of

Immigration Appeals, see, e.g., Matter of Martinez-Serrano,

25 I. & N. Dec. 151, 153 (BIA 2009); Matter of Pierre, 14 I.

& N. Dec. 467, 468–69 (BIA 1973). Judge Bybee offers no

persuasive justification for casting aside thislongstanding and

widely accepted understanding of what it means to enter the

United States.

Judge Bybee perhaps believes this understanding of

“entry” should be preserved for immigration purposes

generally but should not apply to criminal immigration laws

such as 8 U.S.C. §§ 1324, 1325 and 1326. Concurrence at

30–34. Here again, however, Judge Bybee’s view conflicts

not only with the longstanding law of this court but also with

the law of other circuits. See, e.g., United States v. Macias,

740 F.3d 96, 100 (2d Cir. 2014); Angeles-Mascote, 206 F.3d
UNITED STATES V. ARGUETA-ROSALES 21

at 531; United States v. Cardenas-Alvarez, 987 F.2d 1129,

1133 (5th Cir. 1993); United States v. Kavazanjian, 623 F.2d

730, 736–37 (1st Cir. 1980); United States v. Vasilatos,

209 F.2d 195, 197 (3d Cir. 1954). We see no reason for

adopting one meaning of entry for immigration purposes

generally but a different meaning for criminal immigration

laws, much less doing so to create a circuit split.

Indeed, there are at least two persuasive reasons for

continuing to adhere to this longstanding and widely accepted

doctrine. First, as Judge Bybee recounts, the doctrine has

been around for decades, and, although Congress has

amended the criminal immigration laws in the interim, it has

never called into question or expressly overruled the firmly

established judicial gloss on “entry.” As the Supreme Court

has observed on many occasions, “Congress is presumed to

be aware of an administrative or judicial interpretation of a

statute and to adopt that interpretation when it re-enacts a

statute without change.” Forest Grove Sch. Dist. v. T.A.,

557 U.S. 230, 239–40 (2009) (quoting Lorillard v. Pons,

434 U.S. 575, 580 (1978)); see, e.g., Hing Sum v. Holder,

602 F.3d 1092, 1100–01 & n.8 (9th Cir. 2010) (interpreting

the word “admission” in § 1101(a)(13)(A) in light of existing

BIA precedent requiring freedom from restraint).5

 

5

 Judge Bybee suggests the official restraint doctrine may no longer be

valid after the enactment ofthe Illegal ImmigrationReformand Immigrant

Responsibility Act of 1996 (IIRIRA), which he says “eliminated the

concept of ‘entry’ from the INA altogether.” Concurrence at 35–36 n.3. 

This argument is unpersuasive. First, the provision Judge Bybee focuses

on, 8 U.S.C. § 1101(a)(13)(A), expressly continues to rely on the concept

of “entry,” by using that term as part of the definition of “admission.” 

Second, as Judge Bybee acknowledges, we have already held, inPachecoMedina, 212 F.3d at 1166, that IIRIRA’s changes to § 1101(a)(13)(A) did

not alter the established meaning of “entry” under § 1326. Third, when
22 UNITED STATES V. ARGUETA-ROSALES

Second, the official restraint doctrine is a practical

necessity. In its absence, mere physical presence in the

United States, without permission, would give rise to criminal

liability for illegal reentry under § 1326. See United States v.

Barragan-Cepeda, 29 F.3d 1378, 1381 (9th Cir. 1994) (listing

the elements of § 1326). We doubt Congress intended to

make criminals out of persons who, for any number of

innocent reasons, approach immigration officials at the

border. Because “in a literal and physical sense a person

coming from abroad enters the United States whenever he

reaches any land, water or air space within the territorial

limits of this nation,” “freedom from official restraint must be

added to physical presence before entry is accomplished.” 

Vasilatos, 209 F.2d at 197.

B

Judge Bybee also questions our holding in United States

v. Gracidas-Ulibarry, 231 F.3d 1188, 1190, 1196 (9th Cir.

2000) (en banc), that attempted illegal reentry is a specific

intent crime, citing four circuits that have rejected that

proposition – United States v. Rodriguez, 416 F.3d 123, 125

(2d Cir. 2005); United States v. Morales-Palacios, 369 F.3d

442, 445–49 (5th Cir. 2004); United States v. Peralt-Reyes,

Congress adopted IIRIRA in 1996, it also retained and even expanded the

use of the term “entry” under §§ 1325 and 1326. See Pub. L. No. 104-

208, Div. C, Title I, § 105, Title III, § 305 (1996). Given that “entry” had

a firmly established meaning at that time – freedom from official restraint

– we can infer that Congress intended to retain that meaning when it

adopted IIRIRA. Lezama-Garcia v. Holder, 666 F.3d 518 (9thCir. 2011),

upon which Judge Bybee relies, did not address the “official restraint”

doctrine or the meaning of entry under §§ 1325 and 1326, and therefore

does not cast doubt on our longstanding precedent applying the official

restraint doctrine to entry under §§ 1325 and 1326.
UNITED STATES V. ARGUETA-ROSALES 23

131 F.3d 956, 957 (11th Cir. 1997); United States v. ReyesMedina, 53 F.3d 327, at *1 (1st Cir. 1995) (unpublished). 

Concurrence at 39 & n.5. All four of those cases, however,

were decided before the Supreme Court’s decision in United

States v. Resendiz-Ponce, 549 U.S. 102, 106–07 (2007),

which confirmed that the attempt prong of § 1326

incorporates the common law meaning of attempt, including

an element requiring the specific intent to commit the

underlying crime. Resendiz-Ponce confirms that GracidasUlibarry was correctly decided.

C

Finally, Judge Bybee questions our holding in United

States v. Lombera-Valdovinos, 429 F.3d 927, 929 (9th Cir.

2005), that official restraint “encompasses restraint by any

government official, not just officials of DHS,” the

Department of Homeland Security. Concurrence at 40. He

contends official restraint has “always been limited to

physical restraint or surveillance of an alien by a government

officer operating at or just inside the border.” Concurrence

at 40.

Official restraint, however, “need not be by immigration

officers,” Correa v. Thornburgh, 901 F.2d 1166, 1172 (2d

Cir. 1990); see, e.g., Zhang v. Slattery, 55 F.3d 732, 753, 755

(2d Cir. 1995) (shipwrecked alien restrained by local police

upon reaching shore), superseded by statute on other grounds

as recognized in City of New York v. Permanent Mission of

India to United Nations, 618 F.3d 172, 201 (2d Cir. 2010);

Edmond v. Nelson, 575 F. Supp. 532, 535 (E.D. La. 1983)

(aliens seeking entry by sea “restrained” by the master of a

rescuing ship, acting pursuant to government regulations);

Matter of Yam, 16 I. & N. Dec. 535, 536–37 (BIA 1978)
24 UNITED STATES V. ARGUETA-ROSALES

(alien found at the border and taken under guard by local

police to a medical facility), and it need not be at the border,

see Kaplan v. Tod, 267 U.S. 228, 229 (1925) (holding a girl

was under official restraint even though she was “handed

over to the Hebrew Sheltering and Immigrant Aid Society,”

which in turn allowed her to live with her father).

The position Judge Bybee advances in his concurrence is

contrary not only to this precedent but also to the position the

governmentitself argued to us in Lombera-Valdovinos, where

the government expressly rejected the proposition that “only

Department of Homeland Security restraint constitutes

official restraint under section 1326.” The government

argued there that “an alien is not deemed to have entered

unless he is free to go at large” within the United States, the

very principle we followed in Lombera-Valdovinos. Judge

Bybee, therefore, is seeking to relitigate a rule of law the

government expressly advocated for in Lombera-Valdovinos

– and which it has not asked us to reconsider now.

Nor has Judge Bybee suggested a rationale for

criminalizing conduct such as that engaged in by the

defendant in Lombera-Valdovinos. Lombera-Valdovinos

crossed the border, walked directly up to a border control

agent and asked to be taken into custody. He never sought to

evade detection. He never sought the freedom to go at large

within the United States. He neither sought nor “gained a

foothold in the United States.” Kaplan, 267 U.S. at 230. We

see no reason Congress would have intended § 1326 to reach

such conduct.

Judge Bybee alternatively suggests Lombera-Valdovinos

should be reconsidered on a practical ground – because it

would allow defendants to avoid liability for attempting to
UNITED STATES V. ARGUETA-ROSALES 25

reenter the United States by opportunistically asserting, after

detection, that they crossed into the country solely to be

placed into official custody. Concurrence at 43–44. He

argues requiring the government to prove beyond a

reasonable doubt that the defendant had the specific intent to

enter the United States free from official restraint imposes too

great a burden on prosecutors.

This speculation seems unfounded. When a person is

spotted by border patrol agents crossing into the United

States, away from an official port of entry, this alone is

compelling evidence that the person intends to achieve not

only physical presence in the United States but also freedom

from official restraint. Cf. United States v. Quintana-Torres,

235 F.3d 1197, 1200 (9th Cir. 2000) (noting an alien’s

presence in the United States would provide convincing proof

of the alien’s intention to be here unless adequately explained

away, “much as a face covered by jam near a jam jar is

convincing proof of jam-eating unless otherwise explained”). 

Certainly there may be unusual cases in which persons could

be acquitted of attempted illegal reentry where, as in

Lombera-Valdovinos, they cross the border, walk directly up

to a border control agent and ask to be taken into custody. 

But such cases present “a rare set of factual circumstances.” 

Lombera-Valdovinos, 429 F.3d at 930 n.3. In the more than

10 years Lombera-Valdovinos has been on the books, it has

not, to our knowledge, hindered effective prosecution ofthose

who attempt to enter the United States unlawfully. Indeed,

we are aware of only a single case – Lombera-Valdovinos

itself – in which an individual has been acquitted on this

ground.
26 UNITED STATES V. ARGUETA-ROSALES

V

Because the district court applied an incorrect legal

standard, we vacate Argueta’s conviction and sentence in No.

14-50384 and vacate the revocation of supervised release and

sentence in No. 14-50385. We remand for proceedings

consistent with this opinion.

VACATED AND REMANDED.

BYBEE, Circuit Judge, concurring in the judgment and

dissenting as to everything else:

I agree with the majority that the specific-intent standard

that governs Argueta-Rosales’s case is supplied by United

States v. Lombera-Valdovinos, 429 F.3d 927, 928–30 (9th

Cir. 2005). Because the district court failed to apply that

standard, and because we are bound by Lombera-Valdovinos,

I concur in the majority’s judgment vacating the conviction

and remanding this case for retrial. Maj. Op. at 19.

In all other respects, however, I dissent. I am convinced

that Lombera-Valdovinos was wrongly decided and that our

understanding of when an alien is “free from official

restraint” has reached an absurd position. Under LomberaValdovinos, an alien is not guilty of attempted illegal reentry

even if he crosses into the United States surreptitiously and

outside a port of entry, so long as he 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. Judge Rymer rightly

pointed out in dissent from Lombera-Valdovinos that this
UNITED STATES V. ARGUETA-ROSALES 27

novel and unduly expansive definition of “official restraint”

makes no sense and creates a puzzling loophole in the law of

attempted illegal reentry. See Lombera-Valdovinos, 429 F.3d

at 931–33 (Rymer, J., dissenting). The passage of time has

done nothing to blunt the force of her critique. It is time we

revisited Lombera-Valdovinos.

I

I begin by tracing the history that led up to LomberaValdovinos, because it was a case in which “what’s past [was]

prologue.” William Shakespeare, The Tempest act 2, sc. 1. 

Over roughly the last 100 years, the term “entry” has taken on

a “narrower meaning than its colloquial usage” in the context

of immigration law. Lombera-Valdovinos, 429 F.3d at 928. 

For purposes of 8 U.S.C. §§ 1325–26, an alien is considered

not to have effected an “entry” into the United States unless

he not only “cross[es] the . . . border,” but does so “free from

official restraint.” United States v. Hernandez-Herrera,

273 F.3d 1213, 1218 (9th Cir. 2001). The provenance of the

official restraint doctrine—and the future of the doctrine, as

evidenced by Lombera-Valdovinos and this case—should

make us rethink the concept of what it means to enter the

United States.

A

Courts adopted this peculiar definition of “entry”—

freedom from official restraint—because, for many years,

immigration law drew a distinction between exclusion and

deportation. Excluded aliens were those who were

summarily sent home at the border, in contrast to aliens who

were afforded the more elaborate process of deportation

because they were “already physically in the United States.” 
28 UNITED STATES V. ARGUETA-ROSALES

Landon v. Plasencia, 459 U.S. 21, 25 (1982). See Zadvydas

v. Davis, 533 U.S. 678, 693 (2001) (“The distinction between

an alien who has effected an entry into the United States and

one who has never entered runs throughout immigration

law.”). The distinction was a crucial one. By virtue of their

presence in the United States, aliens in deportation

proceedings had greater procedural and substantive rights

than aliens in exclusion proceedings—an administrative

hearing and an appeal, the right to designate the country of

deportation, and the right to seek voluntary departure. 

Landon, 459 U.S. at 26. By contrast, an excludable alien is

a determination at the border, “usually . . . at the port of

entry.” Landon, 459 U.S. at 25. As the Court explained in

Zadvydas, “certain constitutional protections available to

persons inside the United States are unavailable to aliens

outside our geographic borders. But once an alien enters the

country, the legal circumstance changes, for the Due Process

Clause applies to all ‘persons’ within the United States,

including aliens.” 533 U.S. at 693. See generally David A.

Martin, Graduated Application of Constitutional Protections

for Aliens: The Real Meaning of Zadvydas v. Davis, 2001

Sup. Ct. Rev. 47, 92–100.

The distinction between excludable and deportable aliens

required courts to confront a largely metaphysical, but tricky

immigration law problem: What was to be done about aliens

who physically crossed the United States border but never

reached the point of being able to move freely within the

country and mix with the general population? The paradigm

example for this is an alien who presents himself at a port of

entry and is taken to a “secondary inspection” area,

technically across the international border, for further

investigation into whether he is authorized to enter the United

States. Was the alien now entitled to a deportation
UNITED STATES V. ARGUETA-ROSALES 29

proceeding because border agents walked him a few feet

across the border? The courts responded to this conceptual

ambiguity about which due process rights apply in the

immigration context by developing the “legal fiction that

entry is not accomplished until a person is free from official

restraint.” United States v. Parga-Rosas, 238 F.3d 1209,

1213 (9th Cir. 2001). Under this legal fiction, an alien who

never made it out of a port of entry, who was held

temporarily by the United States, or who crossed the border

at some other place but was never outside the control of the

border authorities, would be deemed not to have entered the

United States despite having done so in a literal sense. See,

e.g., Kaplan v. Tod, 267 U.S. 228, 230 (1925) (“[W]hile she

was at Ellis Island she was to be regarded as stopped at the

boundary line and kept there unless and until her right to

enter should be declared.”); United States v. Ju Toy, 198 U.S.

253, 263 (1905) (holding that an alien detained at a port of

entry, “although physically within our boundaries, is to be

regarded as if he had been stopped at the limit of our

jurisdiction, and kept there while his right to enter was under

debate”).

Although it was relatively easy to determine whether an

alien entered the United States when he presented himself for

inspection at a port of entry, it was more complicated to

determine if an alien had entered the United States when he

was interdicted inside the United States, but near the border. 

The case generally credited with inaugurating the official

restraint doctrine in this area is a Chinese exclusion case, Ex

Parte Chow Chok, 161 F. 627 (N.D.N.Y.), aff’d , 163 F. 1021

(2d Cir. 1908). See Lombera-Valdovinos, 429 F.3d at 929;

Pacheco-Medina v. Untied States, 212 F.3d 1162, 1163–64

(9th Cir. 2000). In that case U.S. inspectors had tracked eight

Chinese aliens as they crossed from Canada into the United
30 UNITED STATES V. ARGUETA-ROSALES

States. The aliens were “kept . . . in sight,” stopped a quarter

of a mile inside the United States, and taken into custody. 

Chow Chok, 161 F. at 628. The aliens filed for a writ of

habeas corpus, contending that, because they had successfully

entered the United States, they could only be deported, not

excluded. The court found, however, that the aliens had not

successfully entered the United States because “from the

moment when they crossed the border, they were in the

actual, though not formal, custody of the inspectors.” Id. at

630. Accordingly, they were only entitled to administrative

processing and could be excluded.

B

Although the “entry fiction” doctrine began life as a

means of excluding aliens at or near the border without

affording them deportation proceedings, it soon crossed over

into the realm of criminal law. Courts began to interpret the

term “enter,” in criminal statutes, as a term of art whose

meaning roughly corresponded to the contours of the entry

fiction doctrine in immigration law.

For example, in United States v. Vasilatos, 209 F.2d 195

(3d Cir. 1954), a Greek seaman who had previously been

deported from the United States falsely represented to an

immigration officer at the Port of Philadelphia that he had

never been deported and thereby gained temporary admission

to the United States. Id. at 196–97. The seaman stayed on

his ship until it called at Baltimore, where he disembarked

and headed inland. When he was apprehended in New York

a year later, he was charged with illegal reentry. Id. at 197. 

The government alleged that the seaman had “entered” the

United States at Philadelphia, making that city the proper

venue for his trial; the seaman argued that his entry had
UNITED STATES V. ARGUETA-ROSALES 31

occurred at Baltimore and that Baltimore was thus the proper

venue. Id.

The then-prevailing illegal reentry statute (8 U.S.C. § 180

(1946)) did not define what constituted an “entry” into the

United States, and there was no general definition of the term

elsewhere in Title 8, so the Third Circuit—understandably

—looked to the “official restraint” cases for guidance as to

when an entry occurred. The court observed that

“administration of the immigration laws has long proceeded

on th[e official-restraint] theory of entry” and saw “no reason

to disturb” that theory in the context of the criminal law. 

Vasilatos, 209 F.2d at 197. It therefore held that the seaman

had “entered” the United States at Philadelphia, where his

fraudulently obtained clearance for temporary admission had

first given him freedom from official restraint, rather than at

Baltimore, where he had physically landed in the country. Id.

After the relevant events in Vasilatos occurred, but before

the Third Circuit issued its decision, Congress enacted the

Immigration and Nationality Act of 1952, which collected

and reorganized the various provisions of American

immigration law in one place: Title 8. The Act’s definitional

provision defined the term “entry” very broadly as “any

coming of an alien into the United States, from a foreign port

or place or from an outlying possession, whether voluntarily

or otherwise.” 8 U.S.C. § 1101(a)(13) (1952). But despite

the facial breadth of this definition, the courts were unwilling

to do away with the traditional requirement of freedom from

official restraint. Rather, they simply assumed without much

explanation that § 1101(a)(13) had incorporated the

preexisting judicial doctrine of official restraint. See, e.g., In

re Dubbiosi, 191 F. Supp. 65, 66 (E.D. Va. 1961)

(acknowledging the adoption of 8 U.S.C. § 1101(a)(13) but
32 UNITED STATES V. ARGUETA-ROSALES

stating that “[w]e do not believe, however, that this definition

removes the requirement of establishing not only physical

presence, but also freedom from official restraint, before

‘entry’ is accomplished”).

At our first opportunity, in United States v. Oscar,

496 F.2d 492 (9th Cir. 1974), we adopted the same view of

what constitutes an “entry” for criminal purposes. Oscar and

an accomplice arranged for two Honduran nationals to be

driven to the San Ysidro Point of Entry, where the Hondurans

lied to customs officials and said they were United States

citizens. The Hondurans were taken to secondary inspection

and later arrested. Id. at 492–93. Oscar was subsequently

convicted under 18 U.S.C. § 2 of aiding and abetting an

illegal entry into the United States.

We reversed the conviction, holding that Oscar could not

be guilty of aiding and abetting because the two Hondurans

had not committed the underlying offense of illegal entry

under 8 U.S.C. § 1325. We acknowledged that the two had

come into the United States “[i]n a physical sense” when they

moved to secondary inspection, which ostensiblywas enough

to satisfy the broad definition of “entry” in the 1952 Act. 

Oscar, 496 F.2d at 493. But we agreed with Vasilatos’s and

Dubbiosi’s holdings that “entry,” for immigration-related

purposes, requires freedom from official restraint. Id. at

493–94. We reasoned that although Vasilatos and Dubbiosi

were not factually analogous to Oscar’s case, it made sense

for us to adopt their approach to “entry” because Congress

had chosen to define “entry” in § 1101(a)(13), and it was

“unlikely that Congress would define a term in § 1101 . . . if

it intended the term to have different meanings” in different
UNITED STATES V. ARGUETA-ROSALES 33

contexts. Id. at 493–94.1 That consideration, along with the

rule of lenity, led us to conclude that the Hondurans had not

“entered” the United States because they had not left the Port

of Entry and thus never escaped “official restraint.” Id. at

494.

In subsequent cases interpreting 8 U.S.C. § 1326, the

illegal-reentry statute, we adopted the same view of “entry”

that Oscar applied under § 1325, holding that an illegal

reentry required both physical entry into the country and

freedom from official restraint.2 For example, in United

States v. Martin-Plascencia, 532 F.2d 1316 (9th Cir. 1976),

the defendant was charged with unlawful entry. He had gone

near the port of entry at San Ysidro and crawled through a

hole in one chain link fence and under a second. He was

caught 50 yards into the United States. We rejected his

argument that he was under official restraint because he had

not “reach[ed] the streets of San Ysidro”:

while nominally within the confines of the

Port of Entry, [defendant] was at no instant up

until the moment of his arrest under any type

1 Oscar seems to have assumed in error that Vasilatos rested on an

interpretation of § 1101(a)(13)’s definition of “entry.” Oscar, 496 F.2d

at 493–94. But Vasilatos expressly stated that it did not. The Vasilatos

opinion issued after § 1101(a)(13) was adopted, but the relevant events

occurred before the statute took effect. Vasilatos, 209 F.2d at 196–97. 

Thus, when we considered the import of § 1101(a)(13) in Oscar, we were

writing on a cleaner slate than we realized.

2

See, e.g., United States v. Gonzalez-Torres, 309 F.3d 594, 598–99 (9th

Cir. 2002); United States v. Hernandez-Herrera, 273 F.3d 1213, 1218–19

(9th Cir. 2001); United States v. Castellanos-Garcia, 270 F.3d 773,

775–77 (9th Cir. 2001).
34 UNITED STATES V. ARGUETA-ROSALES

of official restraint, but to the contrary was

exercising his free will, youthful enterprise,

and physical agility in evading fixed barriers

in accomplishing his entry.

Id. at 1317. See also United States v. Aguilar, 883 F.2d 662

(9th Cir. 1989).

C

We substantially broadened our understanding of the

official restraint doctrine inUnited States v. Pacheco-Medina,

212 F.3d 1162 (9th Cir. 2000). Pacheco was climbing the

international fence between the United States and Mexico

when he was picked up by a surveillance camera. The

monitor signaled a Border Patrol agent on a bicycle, and he

arrived just as Pacheco dropped off the fence, “crouched in

preparation for escape in the country at large.” Id. at 1163. 

Pacheco ran, but was quickly apprehended. We overturned

his conviction for unlawful entry because, although he “tried

to get into the country” and, in fact, had succeeded in getting

on U.S. soil without permission, “he was under official

restraint the whole time.” Id. at 1165. Of course, Pacheco

was not under “official restraint” the “whole time,” at least

not in the sense in which immigration law created the

doctrine to distinguish between deportable and excludable

aliens.

It is worth pausing here to consider how far our

conception of “official restraint” had strayed from the

meaning developed in immigration law up until PachecoMedina. Recall that the “official restraint” distinction

developed to explain why we gave different due process

rights to aliens who obtained access to the United States
UNITED STATES V. ARGUETA-ROSALES 35

(lawfully or unlawfully) than aliens who presented

themselves for admission and, technically—but only

technically and temporarily—found themselves standing on

U.S. soil. Pacheco-Medina said that mere surveillance (even

mechanical surveillance) by U.S. authorities was the same

“official restraint” as aliens experience when they present

themselves at a port of entry.

3

3

In 1996, Congress refined the INA’s concept of lawful entry. The

Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)

eliminated the definition of “entry” from the INA altogether, replacing it

with the term “admission.” See Illegal Immigration Reform and

Immigrant Responsibility Act, Pub. L. No. 104–208, § 301(a), 110 Stat.

3009 (1996), codified at 8 U.S.C. § 1101(a)(13)(A). Under the new

definition “admission” was “the lawful entry of the alien into the United

States after inspection and authorization by an immigration officer.”

(emphasis added)). As we recognized in 2011, “IIRIRA replaced ‘entry’

with [the] new concept [of] ‘admission’” and, in so doing, it replaced the

dividing line between excludable and deportable aliens with a new

dividing line—one between lawfully admitted aliens and all other aliens,

with the latter now subject to “more general ‘removal’ proceedings.”

Lezama-Garcia v. Holder, 666 F.3d 518, 527–28 (9th Cir. 2011).

Pacheco acknowledged, but rejected out of hand, the changes in

definitions in IIRIRA. Although Congress had told us that lawful

“admission” required “the lawful entry of the alien . . . after inspection

and authorization,” 8 U.S.C. § 1101(a)(13)(A) (emphasis added),

Pacheco-Medina said that “[j]ust why [the new definition] should matter

at all is far from clear.” The fact that IIRIRA eliminated the definition of

“entry”—and replaced it with something very different—somehow“ha[d]

no significance here.” Evidently we believed that Congress had no place

in defining “entry”: “It certainly does not change the preexisting, and still

existing, judicial concept of what an entry is.” Pacheco, 212 F.3d at 1166

& n.7.

The majority suggests that Congress’s change does not matter

because: (1) the term “entry” is still used within the definition of

“admission,” (2) we reached this issue in Pacheco, and (3) Congress

retained the use of the term “entry” in other statutory sections. Maj. Op.
36 UNITED STATES V. ARGUETA-ROSALES

Pacheco-Medina quickly led to some very strange

“how-many-angels-are-dancing-on-the-head-of-a-pin”

inquiries. Consider two cases decided shortly after PachecoMedina. In Hernandez-Herrera, Herrera was part of a group

of aliens who scaled the international fence. The “still

watch” agent had the group under observation, and they were

quickly detained by field agents. Herrera, however, escaped

the agents and ran into thick brush where, unfortunately for

him, he “was free from official restraint because he was no

longer visible to the ‘still watch’ agent. . . . [The field agent]

followed Herrera’s footprints, and not Herrera.” 273 F.3d at

1219. We affirmed Herrera’s conviction for illegal reentry. 

By contrast, in Gonzalez-Torres, Border patrol agent

Watkins, using binoculars, observed Torres and others enter

the United States. Watkins radioed to a second agent, who

began pursuit. Although Watkins actually “lost sight of the

group ‘for a number of seconds,’” we found that this gap in

the surveillance was not sufficient to break the officer’s

“continuous observation.” 309 F.3d at 599. We overturned

Torres’s conviction. The fact that two aliens who commit

identical acts and have identical mental states are treated

differently based on whether or not a border patrol agent

managed to watch them the whole time should give us pause.

at 21–22 n.5. But this misses the point. The majority urges that the

official restraint doctrine should be adhered to because it “has been around

for decades” and Congress has never “called into question . . . the firmly

established judicial gloss on ‘entry.’” Id. at 21. But is not that exactly

what Congress has done? Congress decided to eliminate that term of art

from the face of the statutory section and replace it with something else. 

For my present purposes, I do not have to determine what effect IIRIRA

might have had on the official restraint doctrine. But, at the least, the

question of what changes, if any, IIRIRA worked on the official restraint

doctrine deserved more discussion that it received in Pacheco-Medina.
UNITED STATES V. ARGUETA-ROSALES 37

As a theoretical matter, moreover, it is far from clear that

the concept of official restraint maps onto criminal law

particularly well. Official restraint, after all, was designed to

answer the question whether an alien in custody could be

excluded or must be deported, whether he was to be afforded

minimal procedural rights or plenary rights. See Chow Chok,

161 F. at 628. We must, of course, determine what “entry”

means in convictions under §§ 1325–26. But our concern has

nothing to do with what process the alien is due. Once an

alien has been indicted under either of these sections, the

scope of his procedural rights is decided: he is entitled to a

trial by jury, see U.S. Const. amend. VI; representation by

counsel, id.; and the sundry other procedural protections that

define our criminal justice system, id. amend. V. “Official

restraint” thus ends up being used to answer an entirely

different question in criminal cases—i.e., when the actus reus

of illegal entry or reentry has been accomplished—and, like

any repurposed concept, produces some odd results. For

example, the notion that an alien who hops a border fence and

makes it a substantial distance into this country has not

committed the act of entering the United States because he

was under constant surveillance defies common sense. 

Perhaps this is why neither § 1325 nor § 1326 nor

§ 1101(a)(13) mentions any such requirement.

The majority provides little reason for adopting the

concept of entry which was developed to discern between

different due process standards in the immigration context, in

the very different context of determining when someone has

committed the substantive crime of illegal reentry. It first

warns that the crime of reentry, without the official restraint

limitation, would unfairly “make criminals out of persons

who, for any number of innocent reasons, approach

immigration officials at the border.” Maj. Op. at 22. I
38 UNITED STATES V. ARGUETA-ROSALES

respectfully disagree that this is a problem.4 The lawful

process to enter the U.S. does not include walking across the

border without permission. That is, bydefinition, an illegal—

or unauthorized—entry. Whether or not that person happens

to be under surveillance at the time does nothing to change

her culpability.

The majority also suggests that we should continue to

apply the official restraint doctrine in the criminal context

because “the doctrine has been around for decades.” Maj.

Op. at 21. But the fact that this doctrine was adopted long

ago—without any serious thought either at its inception or

since—is precisely what should give us pause.

D

There is one final development I must mention. Prior to

Lombera-Valdovinos, an alien who could not be charged with

illegal entry or reentry because he was never free from

official restraint could still be charged with attempted illegal

entry or reentry. See United States v. Leos-Maldonado,

302 F.3d 1061, 1063, 1065 (9th Cir. 2002) (holding that an

alien can be guilty of attempted entry even if he is under

official restraint throughout his crossing of the U.S. border). 

We held in United States v. Gracidas-Ulibarry, 231 F.3d

1188, 1195–96 (9th Cir. 2000) (en banc), that attempted

4 One doesn’t have to look beyond this case, Lombera-Valdovinos,

Gonzalez-Torres, or Pacheco to see that these were not “persons who, for

any number of innocent reasons, approach immigrant officials.” Whether

these persons are scaling the international fence or running through desert

brush, they were not persons seeking to “approach immigration officials”

for “innocent reasons.”
UNITED STATES V. ARGUETA-ROSALES 39

illegal reentry is a specific-intent crime.5 At the same time

we construed the requisite intent broadly, concluding that an

alien need only have the “conscious desire[] to reenter the

United States without the express consent of the Attorney

General.” Id. at 1196; see also id. at 1198 (“§ 1326 requires

a finding that the defendant consciously desired to reenter the

United States without consent.”). Under this standard, an

alien who intentionally crossed the border but did not escape

official restraint would usually be guilty of attempted illegal

entry or reentry, assuming he could not claim one of the

general criminal-law defenses to specific intent. See, e.g.,

United States v. Smith-Baltiher, 424 F.3d 913, 925 (9th Cir.

2005) (holding that a § 1326 defendant was entitled to present

a mistake-of-fact defense based on his alleged belief that he

was a U.S. citizen); United States v. Blanco-Gallegos,

188 F.3d 1072, 1076 (9th Cir. 1999) (considering and

rejecting a § 1326 defendant’s voluntary-intoxication defense

on the merits).

II

Against this legal backdrop, we heard LomberaValdovinos. A Border Patrol agent first saw Lombera

standing on the Mexico side of the U.S.-Mexico border. The

agent looked away for a brief period, and when he turned

back, Lombera was now on the U.S. side of the primary

5

I note that every other circuit to consider the question has disagreed

with us, holding that § 1326 does not require specific intent. See United

States v. Rodriguez, 416 F.3d 123, 125–26 (2d Cir. 2005); United States

v. Morales-Palacios, 369 F.3d 442, 446–48 (5thCir. 2004); United States

v. Peralt-Reyes, 131 F.3d 956 (11thCir. 1997) (per curiam); United States

v. Reyes-Medina, 53 F.3d 327 (1st Cir. 1995) (per curiam). As I observe

in text, we have given the specific intent requirement a fairly generous

reading, which may have effectively narrowed the gap between us.
40 UNITED STATES V. ARGUETA-ROSALES

fence, walking directly toward the agent. The agent drove

toward the defendant, and when they met, Lombera said, “I

want to see an immigration judge,” admitted to being a

Mexican citizen, and conceded that he had no legal right to

enter the United States. He explained that he had crossed the

border because he “wished to go back to jail.” Lombera, who

had previously been deported several times, was arrested,

charged with attempted illegal reentry, and convicted of that

offense by a jury. Lombera-Valdovinos, 429 F.3d at 928.

We reversed the conviction, holding that no rational trier

of fact could conclude that the defendant had the specific

intent necessary to be guilty of attempted illegal reentry. We

reasoned that because attempted illegal reentry requires the

specific intent to reenter the United States without consent,

and because an “entry” into the United States requires

freedom from official restraint, a defendant “must have the

specific intent to reenter ‘free from official restraint’” in order

to be convicted of attempted reentry under § 1326. Id. at 929. 

And then, crucially, we went on to hold that official restraint

“encompasses restraint by any government official, not just

officials of DHS.” Id. (emphasis added). Thus, the defendant

could not be guilty of attempted illegal reentry, because his

intention was to go to jail—where he would be subject to

“official restraint” by prison officials. Id. at 930.

This reasoning rests on an unprecedentedly expansive

view of what constitutes “official restraint.” Until LomberaValdovinos, the concept of “official restraint”—in both the

immigration and the criminal context—had never been used

to refer to all forms of confinement by any official of the U.S.

government. Rather, it had always been limited to physical

restraint or surveillance of an alien by a government officer

operating at or just inside the border. See id. at 931 (Rymer,
UNITED STATES V. ARGUETA-ROSALES 41

J., dissenting) (“[Official restraint] is a term of art for border

control.”). And for good reason: “Official restraint,” recall,

is a legal fiction used to distinguish between aliens who are

deemed to have been stopped at the border and those who

have reached the interior of the United States. This

distinction does not turn on what happens to an alien after he

gets beyond the border. An alien who ends up incarcerated

in a federal prison has reached the interior of the United

States no less than an alien who crosses the border undetected

and then gads about the country at perfect liberty.

Lombera-Valdovinos’s three explanations for its

expansive view of “official restraint” were unconvincing. 

First, it cited Oscar for the proposition that official restraint

is not limited to “officials of DHS,” noting that the official

doing the restraining in Oscar was a “customs official[].” Id.

at 929 (majority opinion). But although the relevant official

in Oscar was not, strictly speaking, a border patrol officer, he

was working at the San Ysidro Port of Entry and clearly

functioning as part of the border control system. See Oscar,

496 F.2d at 493. Oscar thus shows, at most, that the notion

of official restraint does not depend on where precisely an

officer stands on an organizational chart. It does not imply

that restraint by any government officer, even one not

charged with any duty relating to the border, is “official

restraint.”6

6 Lombera-Valdovinos’s reliance on Oscar as evidence that “official

restraint” extends beyond confinement by the Department of Homeland

Security is especially curious in light of the fact that since Oscar, the

Customs Service has been combined with the Border Patrol into one

agency (U.S. Customs and Border Protection), which in turn is under the

umbrella of DHS. See 6 U.S.C. § 542 Note. I doubt it ever made sense,

in this context, to draw fine-grained distinctions between “customs
42 UNITED STATES V. ARGUETA-ROSALES

Second, Lombera-Valdovinos quoted several cases

suggesting that any alien who cannot “go[] at large within the

United States” or “mix with the population” is under official

restraint. See Lombera-Valdovinos, 429 F.3d at 929

(emphasis omitted). But these quotations were misleading. 

In each of these cases, the court being quoted was discussing

an alien who was not at liberty because he was confined by

border control. These cases do not establish that whenever

an alien is not free to “go at large within the United States,”

he is under “official restraint” as that term is used in

immigration law. Lombera-Valdovinos’sfailure to appreciate

that distinction makes clear that although our § 1325 and

§ 1326 cases initially borrowed the concept of “official

restraint” from the immigration context, we have now

wrenched it from that context entirely. With each succeeding

step, culminating in Lombera-Valdovinos, we have gotten

further away from what § 1326 plausibly means.

Finally, the Lombera-Valdovinos majority suggested that

an alien who presents himself to the authorities at the border

wanting to go to jail likely perceives no difference between

being in the custody of border authorities and being in the

custody of “some other United States jailer,” given that he is

almost certainly unfamiliar with the doctrine of “official

restraint.” Id. at 930 n.2. Hence, the majority argued, such

an alien cannot possess the intent required for attempted

illegal reentry because he does not “intend[] to avoid or

change” his status of being subject to official restraint. Id. at

930. But the initial premise of this argument is flawed. An

alien who approaches a port of entry and says he wants to go

to jail does not want to stay detained at the border forever; he

officials” working at the border and border patrol agents, but it surely does

not make sense to do so now.
UNITED STATES V. ARGUETA-ROSALES 43

wishes to go to a prison in the interior and become “part of

the United States population, albeit that part of the population

which is incarcerated.” Id. at 931 (Rymer, J., dissenting). By

asking to go to jail, he demonstrates that he does not perceive

the two forms of custody to be the same. See id. at 932–33

(“Lombera-Valdovinos’s articulated purpose was to go to a

real jail, not to stay in the constructive custody of

immigration officials at the border or its functional

equivalent.”).

In short, none of Lombera-Valdovinos’s arguments for

construing “official restraint” in the way that it did stands up

to scrutiny. The case was wrongly decided, and were it not

binding on this panel, I would not follow it.

III

Lombera-Valdovinos assured us that its consequences

would be limited, explaining that its holding applied only in

the “rare set of factual circumstances where there is no

evidence of anything other than the intent to be taken into

custody.” Id. at 930 n.3 (majority opinion). But I remain

concerned about the decision’s potential ramifications, which

this case demonstrates may be far-reaching. As the majority

opinion here recognizes, nothing in Lombera-Valdovinos

limits that case’s holding to situations in which an alien walks

directly up to a border patrol agent and asks straightforwardly

to be escorted to jail. Maj. Op. at 15–16.7 On the contrary,

7 And even in those cases I would be concerned. Both the majority in

Lombera-Valdovinos and the majority in this case ignore the possibility

that some aliens in unfortunate circumstances—like Argueta-Rosales—

may indeed elect to come into the U.S. with a specific intent to reside in
44 UNITED STATES V. ARGUETA-ROSALES

even an alien who—like Argueta-Rosales—acts in ways that

strongly suggest his desire to enter the country free from

official restraint can assert, if he is apprehended, that he

wants to go to jail and thereby claim the protection of

Lombera-Valdovinos.

The majority here helpfullytries to address these potential

concerns by clarifying that in an attempted illegal reentry

case, “[t]he government must prove only that [the defendant]

had a specific intent to enter the United States free from

official restraint, not that this was his only purpose.” Maj.

Op. at 16–17. It predicts that a defendant who “actually

intend[s] to sneak into the country, and change[s] his plans

only when he [i]s spotted” will be convicted of attempted

illegal reentry. I certainly hope that the majority is right. But

as the majority reminds us, it is the government’s burden in

a § 1326 case to “prove[] unlawful intent beyond a reasonable

doubt.” Id. at 16. There surely will be some § 1326 cases in

which defendants’ dubious claims that they desired to go to

jail are nonetheless plausible enough to give the jury

reasonable doubt of their guilt, thereby allowing those

defendants to “gut the crime of attempted reentry by a play on

words.” See Lombera-Valdovinos, 429 F.3d at 933 (Rymer,

J., dissenting). This cannot possibly be how § 1326 is meant

to work.

* * *

Lombera-Valdovinos 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,

U.S. prisons. Under Lombera-Valdovinos, they may do so without

consequence.
UNITED STATES V. ARGUETA-ROSALES 45

while aliens who cross hoping to be restrained by the United

States must be freed. Under the majority’s regime, no one

gets what he wants, but some people go to jail, while

everyone else goes home. This is a strange state of affairs

indeed. And we could and should have avoided it by holding

in Lombera-Valdovinos that the specific intent required for

attempted illegal reentry is the intent to reenter the United

States free from restraint by authorities at the border.

TheLombera-Valdovinos panel didn’t choose that course,

so I am compelled to concur in the judgment here. But I do

so under protest. I would grant Argueta-Rosales his wish and

allow him to go to jail.