F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

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

v

.

O M A R A R G U E T A -R O S A L E S , D efendant-Appellant. Nos. 14-50384 14-50385

D.C. Nos. 3:14-cr-00244-L

AB -1 3:10-cr-04572-L

AB -1

OPI NI ON

A ppeal from the United States District Court for the Southern District of California L a rry A. B urns, District J udg e, Presiding

Arg ued and Submitted J u ne 3, 2015—Pasadena, California

F iled April 12, 2016

B efore: Ray

mond C. F isher and J ay

S. B y bee, Circuit J udg e s, and Eliz abeth E. F oote, District J udg e. *

Opinion by

J udg e F isher; Partial Concurrence and Partial Dissent by J udg e B y bee

* T h e Ho n o rab l e Elizab eth E. Fo o te, Un i ted States District J u d g e f o r th e W estern District o f

L o u isian a, sittin g b y

d esig n atio n

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

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G U E T A -R O S A L E S 2

SUMMARY * *

Crim inal Law

The panel vac a ted a conviction and sentence for attempted illeg al reentry , and vacated the resulting r evocation of probation and senten c e, in a c ase in w hich the defendant presented evidence that he crossed into the United States in

a delusional state, believing he was b eing chased by Mex ican
g ang s, and with the specific intent solely to place himself into the protective custody

of United States officials.

The panel held that the district court

– w hich ruled that the mens rea element of attem p t e d illeg al 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 privileg ed to do so – misapplied United States v. Lombera-Valdovinos
, 429 F .3d 927 (9th Cir. 2005), in which this court held that because attempted illeg al reentry is a specific i n t e n t crime that requires proof of intent to enter the c o u ntry f ree from official restraint, it was impossible to convict a previously deported alien for attempted illega l r eentry when he crosses the border with the intent only to be imprisoned.

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

c l a r ified that where, as here, there is contradictory eviden c e reg arding the d efendant’s intent, it is f o r the trier of fact to determine whether the g o v e rn ment has proven unlawful intent bey o nd a r e a s o nable doubt. T h e panel also c larified
t h a t the g o vernment need n ot prove that entry free f r o m

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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G U E T A -R O S A L E S 3

official restraint was the defendant’s s o l e intent. The panel concluded th at i t is not clear b ey ond a reasonable doubt the district court would have found t h e defendant g uilty absent its misapprehension of the specific intent element. The panel remanded for proceeding s consistent with this opinion.

J udg e B y bee concurred in the judg ment and dissented a s to every thing else. B ecause the district court failed to a pply the standard supplied by Lombera-Valdovinos
, he concurred in the judg ment vacating the c o n viction and remanding for retrial. H e wrote that h e is convinced, howe v e r, t h at Lombera-Valdovinos was w rong ly dec i d e d and that our

u n d e rstanding of when an alien is “free from official restraint” has reached an absurd position.

COUNSEL

D o u g K eller, F ederal Defenders of San Dieg o, I nc., San Dieg o, California, for Defendant-Appellant.

L aura E. D uffy
, United States Attorney
, Br uce R. Castetter, Assistant United States Attorney
, Chi e f
, Appellate Section, Criminal Division, an d F rancis A

. DiGiacco (arg ued), Assistant United States Attorney
, San Dieg o, California, for Plaintiff-Appellee.U N I T E D S T A T E S V

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G U E T A -R O S A L E S 4

OP INION

F I SHER, Circuit J udg e :

At trial on the c h arg e of attempted illeg al reentry into the United States, Omar Ar g

u eta-Rosales p resented evidence that he crossed into the United States in a delusional state, believ i ng he was b eing c hased b y Mex ican g ang s, and with the specific intent solely to place himself into the prote c t i v e custody o f United States officials. The district court fo u n d this evidence plausible, but nonetheless found Arg ueta g uilty

o f the charg ed offense, ruling the mens rea element o f attempted illeg al r e entry under 8 U.S.C. § 1326 requires the
g overnment to pro v e o n l y that the d efendant knew he was crossing into the United States and that h e was not privileg ed to do so. I n United States v. Lombera-Valdovinos , 429 F .3d 927, 9 28 (9th Cir. 2 0 0 5 )
, however, we held it was “[ im] possible to convict a previousl y deported alien for attempted illeg al reentry into the U nited States under 8 U .S.C. § 1326 when he crosses the b order with the intent o nly to be imprisoned

. . . , because a ttempted ill e g al reentry is a specific intent crime that requires proof of intent to e nter the country free from official r e s t r a int.” B ecause the district
court f ound Arg ueta g uilty under an erroneous leg al standard, we vacate his conviction and remand f or a new trial or other proceeding s consistent with this opin ion.

I

Omar Arg ueta-Rosales was born in Mex ico i n 1 981. W h en he was five, his mothe r m i gr a ted to the United States and he was left to the care of his g randparents in Mex ico. He lived with his g r andparents for four y ears before reuniting with his mother in L os Ang eles, California. He lived with hisU N I T E D S T A T E S V

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G U E T A -R O S A L E S 5

mother in L os A ng eles until h e was 16 y ears old. An immig ration judg e ordered him removed in 2006.

I n 2 0 10, Arg ueta was apprehended at the border while attempting to unlawfully return to the United States. I n 2011, he pled g uilty to attempting to illeg ally reenter th e United States, in violation of 8 U.S.C. § 1 3 2 6
, a n d received a sentence of five y ears’ p robation. A standard ter m o f h i s probation provided he “shall not commit another federal, state, or local crime.”

After returning to Mex ico, Arg ue t a b eg an to abuse methamphetam i n e

. A few day s before the border c rossing that is the subject o f this a ppea l
, h e was beaten by g ang members in Mex ico. I n the day s that followed, a ccording to Dr. B ruce Yanofsky
, the c ourt- a p pointed psy cholog ist w ho testifi ed at trial, Arg ueta became “increasing ly p aranoid, he

was worried, h e 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 g ot to t h e p o int w here he felt that his life was in dang er a n d then obviously

. . . proceeded to try to cross t he border with the account that he g a v e m e that he had the cell phone, that it wa s a l a n d line – well, it

was con nected to a line in the United States, he was try ing to c all for help, he was c alling 9-1-1 repeatedly because he wanted law enforcement to intervene because he h ad tried the Mex ican law e nforcement to h elp him a nd they didn’t do any

thin g f o r him. So in this
state of panic, paranoia, and j u st losingU N I T E D S T A T E S V

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G U E T A -R O S A L E S 6

c o n t rol of what w as g o ing o n in his life, fearing for his life, he ended up in the border.

No cell phone was found on Arg ueta’s person at the tim e o f his arrest, however.

A rg ueta crossed the U nited States border from Mex ico
, about one and one-half miles w est o f the San Y s idro, Californi a , p o rt of entry , on November 29, 2013. At the border, Arg u eta climbed over the appro x i m a tely 1 0-foot primary fence, which p laced h i m i n the United States. He

was at that point between the prim a ry f ence and the secondary fence, which is approx i mately 50 y ards north o f the primary f

e n c e a nd about 20 feet hig h. A r g ueta was spotted by B order Patrol Age n t Oscar Alvarado when Arg u eta was a

pprox imately 1 5 y a

rds n orth of the primary fence. A rg ueta was walking
, at a normal s p eed, in a north and westbound direction. Ag ent A lvarado radioed another officer to intercept Arg

ueta.

B o rder Patrol Ag e n t J effrey Schwinn responded. Ag ent Schwinn approached in his vehicle to approx imately 20 feet

a w ay , ex ited h is vehicle and shouted “Hey ” to try t o ge t Arg u eta’s attention. W hen Arg u eta did not r espond, Ag ent Schwinn approached Arg ueta. Arg uet a t u rned around a nd looked at Schwinn, a t which point Schwinn a s k e d him in Spanish where he was b o r n. Arg u eta said Mex ico City

. Schwinn asked Arg ueta what country h e was a citiz en of, a nd he said Mex ico, so Schwinn proceeded to ask him i f he h ad
any immig ration documents allowing h im to e nter the United States, and he said no. At that point, Arg ueta beg an to walk towards Schwinn, and Schwinn told him to head back south and return to Mex ico. W h e n Arg ueta did not take that
sug g estion, A g ent Schwinn to l d him he was g oing to placeU N I T E D S T A T E S V

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G U E T A -R O S A L E S 7

him under arrest, and Arg u e ta said something to the effect o f “y ou do what y ou g ot to do.”

About two hours after his arrest, two border p atrol ag ents interviewed A rg ueta at the I mperial B each B o r d er Patrol Station in San Dieg o. During the b eg inning of the interview, which was c onducted in E ng lish, Arg ueta appeared c alm a nd rational. Early in the interview, Arg ueta asked to make a statement , say ing “[ i] t’s important. I t relates to what happened at my house.” One o f t h e a g ents told Arg ueta he would be able to make a statement later. At one point during the interview, one of the ag e nt s asked Arg ueta, “W hen did
y ou l a s t enter the United States,” and this discussion followed:

A. L ast was five y ears a g o. F ive y e ars ag o, almost five and a half.

Q. How did y ou enter the United States?

A. Try ing to g o throug h the line walking

.
Q. Throug h where?

A. I was walking thr o u g h Calex ico, f rom Mex icali to Calex ico.

Q. The port of entry ?

A. Ex actly

.
Q. W h at is y our destination in the U n i t ed States, city

and state?U N I T E D S T A T E S V

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G U E T A -R O S A L E S 8

A. L os Ang eles, California.

Q. Do y ou have any

. . . fear of persecution o r torture should y ou be removed from the United States?

A. Yes, I do.

The ag ents did not follow up on Arg ue ta’s c laim o f persecution.

T o ward the end of the interview, when the ag ents ask e d Arg u eta whet h e r he wanted to say any thing else, Arg ueta made a pparen tly delusional statements for two minutes, referring to people who were in the cell with h im even thoug h the only people there were Arg u eta and the two border p atrol
ag ents:

A. J ust that I come – the people who I ’m with rig ht now in the tank are the people who were at my house.

Q. I n here in the cell?

A. (I naudible.) A nd also, I wanted to ask y ou g uy s if it’s coinciden tal or (unintellig ible). And that’s when one of the (unintel l ig ible) started asking me wha t’s up. I told them I noticed I r e cog niz e the skinny g uy , the o ne they put at the end. (Unintellig ible) the other

one with white shorts (unintellig ible). He started taking his hand out. B efore that I told the skinny dude, h ey , I know y ou, bro. I t hurts me, because that’s my wife, y ou know.U N I T E D S T A T E S V

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G U E T A -R O S A L E S 9

B u t then ag ain, I don’t know what’s g oing

on. L ike I said, I wa s g o i n g nuts over there. I couldn’t remember. I had to ask my wife. I
mean, there’s s ome pictures I seen. I can’t
recog niz e certain p eople (unintellig ible). I

was g oing thr o u gh it and not only (unintellig ible) that’s the people that are a fter me. (Unintellig ible.)

I n F ebruary 2014, Arg ueta w a s charg ed w ith attempting
to reenter the United States, in violation of 8 U.S.C. § 1326(a) and (b). 1 He was separately charg ed with violating the terms

1 Sectio n 1 3 2 6 (a) states:

(a) In g en eral

Su b j ect t o su bsectio n (b ) o f th is sectio n , an y alien w h o

–
(1 ) h as b een d en ied ad m issio n , ex clu d ed , d ep o rted , o r

rem o v ed o r h as d ep arted th e Un ited States w h ile an

o rd er o f ex clu sio n , d ep o rtatio n , o r rem o v al is

o u tstan d in g , an d th ereaf

ter

(2 ) en ters, attem

pts t o en ter, o r is at an y

tim e f ou n d in
, th e Un ited States, u

n l ess (A ) p rio r t o h is reem b ark atio n at a place o u tsid e th e U n i ted S tates o r h is ap p licatio n f o r ad m issio n f

ro m f o reig n co n tig u o u s territo ry , th e A tto rn ey G e n eral h as ex p ressly co n sen ted to su ch alien ' s reap p ly in g f

o r ad m issio n ; o r (B ) w ith resp ect to

a n alien p rev io u sly d en ied ad m issio n an d rem o v ed
, u n less su ch alien sh all estab lish th at h e w as no t req u i red to o b tain su ch ad v an ce co n se n t u n d er th is ch ap ter o r an y

p rio r A ct,U N I T E D S T A T E S V

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G U E T A -R O S A L E S 10

of his 2011 probation. The district cour t a p p o inted Dr. Yanofsky to determine whether Arg u et a was competent to stand trial. After Arg ueta was found competent, the case proceeded to a bench trial. At trial
, Dr. Yanofsky testified
t h at, on the d a

y Arg ueta climbed over the border fenc e , h e

was suffering from a substance-induced psy chosis caused b y heavy methamphetamine u se. According to Dr. Yanofsky
, Arg u eta w as operating u nder a delusion that individuals were chasing him and try ing to kill him, prompting h im to climb

ov e r the b order fence. An ex pert proffered by the
g overnment, Dr. Mark Kalish, d isag reed with Dr. Y anofsky ’s conclusion that Arg ueta was suffering from s u b stanceinduced psy chosis.

At the close of eviden c e , t h e p a r ties p resented closing
arg uments to the district court. The elements of the crime o f attempted illeg al reentry under § 1326 are: “(1) the defendant had the pu r

p o s e , i.e., c onscious desire, to reenter the United States without the e x press consent of the A t t o rney General; (2) the d efendant committed a n overt act that was a substantial step towards reentering w ith o u t that consent; (3) the defendant was not a citiz en of th e United States; (4) the defendant had p r eviously b een lawfully denied

a d mission, ex cluded, deported or removed from the Unit e d States; and (5) the A ttorney General had not consented to the defendant’s attempted r e e ntry

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

sh all b e f in ed u n d er T itle 1 8
, o r im priso n ed n o t m ore th an 2 y ears, o r b o th

.

Sectio n 1 3 2 6 (b ) p ro v id es en h an ced p en alties f o r certain d ef

en dan ts.U N I T E D S T A T E S V

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G U E T A -R O S A L E S 11

Here, only the first element was in d ispu t e

. R e ly ing on United S tates v

. Lombera-Valdovinos
, 429 F .3d 927 (9th Cir. 2005), Arg ueta’s counsel arg ued “the g overn m e nt cannot prove specific intent bey ond a reasonable doubt because the evidence in this case showed that Mr. Arg ueta entered the U nited States under the psy c h otic belief that he was b e i n g chased by armed g unmen in Mex ico, but he specifically

– while that may be the motiv e , h e specifically intended to enter to find protection” by turning himself in to the border patrol. Acc o r d i n g to Arg ueta’s counsel, Arg ueta w as not g uilty of the c rime of attempted illeg al reentry if the evidence showed that his “specific intent . . . was to g o into custody

. ” Couns el maintained that, under Lombera-Valdovinos
, “if

someone specifically intends to enter the United States to g o into custody
, they ’re affir matively not g u ilty u nder the attempted reentry

charg e of [ §] 1326.”

The district court rejected Arg ueta’s a r gument. I n the court’s view, the specific intent element of attempted illeg al entry would be satisfied so long as Arg uet a “knew he was vaulting the fence into the United States a nd he knew that that

was wrong .” The court rejected the proposition that Arg ueta could n eg ate the specific intent el e ment merely by showing he intended to enter into c ustody
, disag r eeing with Arg ueta’s

ar gument that “ the reason of coming over here to turn
y ourself in i s e n oug h to defeat conscious purpose.” According to the court, if the d e f ense was “rig ht that the desire to turn y ourself in, e ven i f i t ’s b ased on a d e lusion, is
enoug h to defeat conscious purpose, the appellate c ourt will tell us. I don’t think it is.”

Having rejected Arg ueta’s leg a l a rg umen t , t he court proceeded to find the specific intent element proven bey ond

a reasonable doubt because Arg ueta (1) knew he was c rossingU N I T E D S T A T E S V

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G U E T A -R O S A L E S 12

into the United States and (2) knew he d id n o t h a v e permis s i o n t o do so, facts Arg ueta did not dispute. According ly
, the court found Ar gu eta g uilty of the crime o f attempted illeg al reentry

. I n addition, solely on t h e b asis o f that conviction, the court also found Arg ueta g uilty o f violating the terms of h i s 2011 p r obation. T he court later sentenced Arg u eta to 21 months in custody on the attempted illeg al r eentry conviction a n d an additional 1 2 months in custody o n th e p robation violation, to be followed by three
y ears of supervised r elease. Arg ueta timely a pp e a l e d both judg ments, and the two appeals have been consolidated in this
court.

I I

Conclusions of law followin g a bench trial are reviewed d e novo. See O

swalt v. R esolute I

ndus., Inc.
, 642 F .3d 8 5 6
, 859 (9th Cir. 2011); cf. U

nited States v. Knapp
, 120 F .3d 928, 930 (9th Cir. 1997) ( “I f a jury instruction misstates elements of a statutory crime, the standard of r eview is

. . . de novo .”).

I I I

A

This case is controlle d by Lombera-Valdovinos
, where we held it w as “ [ im] possible to c o n v i c t a previously deported alien for attempted illeg al reentry into the United States under 8 U.S.C. § 1326 when he cross e s the border with the intent only to be imprisoned

. . . , because attempted illeg al reentry is a specific intent crime that requires proof of intent to enter the country

free from official restraint.” 429 F .3d at 928.U N I T E D S T A T E S V

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G U E T A -R O S A L E S 13

I n Lombera-Valdov i n os , a border patrol ag ent was patrolling the border between the United States and Mex ico, sitting in a marked b order patrol vehicle between the primary fence, which marks the actual border, and the secondary fence, located about 100 f eet north of the primary fence. See id. W ith b inoculars, the ag ent saw the defendant and four o r five others standing on the Mex ico side of the b order, about 200 y ards away from the ag ent. See id. T h e age n t t h en looked a way for about 15 sec o n d s ; when he turned back, he

saw the defendant, alone and now on the United S t a t e s s i de of the primary fence, walking directly toward him. See id. W h en the defendant c ontinued to walk toward the ag ent, the

a g ent drove toward him. See id. W hen they met, t h e defendant stated, “I want to see an immig ration judg e,” admitted to being a citiz en o f Mex ico and, when asked if he had any leg al basis for being present in the United States, answered “No.” Id. He also said he “wis h ed to g o b ack to jail.” Id. The ag e nt then searched a nd arrested the defendant. See id.

B e cause the defendant had been deported before, he was charg ed with attempted illeg al reentry , in violation of § 1326. See id. After a jury retur n e d a g u ilty verdict, the defendant moved for judg ment of acquittal under F ederal R u le o f Criminal Procedure 29. See id. a t 927–28. T he district court denied the motion, and the defendant appealed. See id. Reviewing the evidence in the lig ht most favor ab l e to the
g overnment, we held that no rational trier of fact could have found the essential elements of the crime bey ond a reasonable doubt. See id. at 930.

W e ex plained that, “for purposes o f § 1326, ‘enter’ has a

narrower meaning than its c o lloquial u sag e.” Id. at 928. “An alien has not entered the United States under § 1326 unless heU N I T E D S T A T E S V

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G U E T A -R O S A L E S 14

does so ‘free from official restraint.’” Id. (quoting GracidasUlibarry
, 231 F .3d at 1191 n.3). A ttempted illeg al reentry , in turn, “requires proof of specific intent, more particularly the specific intent ‘ to reenter without consent.’” Id. a t 929 (citation omitted) (quoting United States v. Leos-Maldonado
, 302 F .3d 1061, 1063 (9t h Cir. 2002)). Official r estraint, we further ex plained, “ e n compasses restraint by any g overnment official,” not j u s t officials of the Department o f Homeland Security

. Id. 2 B ecause a ll of the evidence sh o w e d “the defendant’s intent w as to b e tak e n i n to custody ,” id. at 930 n.3, we held that “no rational trier of fact could conclude

. . . the defendant was gu i l t y o f the specific intent c rime o f attempted illeg al reentry ,” id. at 930.

As the g overnment now conce d e s, the district court misapplied Lombera-Valdovinos here. 3 I n order to c o nvict Arg u eta, the g overnment was requi r ed to p rove bey ond a

2 A t trial in Lo mb era -Va ld o vin o s , th e g o v ern m en t arg u e d “o ffi cial

r e s t rain t” en co m

p assed on ly restrain t b y of f icials o f th e Dep artm en t of Ho m elan d Secu rit y ( D H S), n o t oth er f orm s o f o f

f icial cu sto d y

. S

ee 4 2 9 F.3 d at 9 2 9 –3 0 . In th e g ov ern m en t’ s v iew
, if th e d ef en d an t cro ssed in to th e Un i ted States w ith t h e in ten t to g o to j ail, th en h e h ad th e sp ecif ic in ten t to en ter f

ree f ro m o f f icial restrain t. S

ee i d

. at 9 2 9

. W e rej ected th at arg u m en t in Lo mb era -Va l d o vin o s , see id

. at 9 29

– 3 0
, an d th e g o v ern m en t d o es n ot reassert it h ere. In d eed
, th e g o v ern m en t co n ced ed th e p o in t on ap p eal in Lo mb era -Va ld

o vin o s

. S ee id

. at 9 2 9.

3 A lth o u g h th e g o v ern m en t on ap peal h as co n ced ed th e d istrict co u rt

m isap p lied Lo mb era -Va l

d o vin o s , g o v ern m en t co u n s el said n o th in g in th e d istrict co u rt w

h ile A rg u eta’ s co u n sel an d th e co u rt d eb ated t h e p ro per leg al stan d ard

. Had th e g o v ern m en t p o i n ted o u t a t th a t t ime th at A rg u eta

w as articu latin g th e co rrect leg al stan d ard f o r th e sp ecif

ic in t en t elem en t

o f attem p ted i l leg al reen t

ry , t h e co u rt m ig h t h av e reach ed a v erd ict f ree f ro m l eg al erro r. T h e g o v ern m e n t ’ s f ailu re to so ad v ise th e co u rt at th at tim e is reg rettab le.U N I T E D S T A T E S V

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G U E T A -R O S A L E S 15

reasonable doubt that Arg u eta crossed into the United States with the specific “intent to e nter the country free from official restraint.” Id. at 928. I t was not sufficient that Arg ueta knew he was crossing into the United States and knew he did not have permission to do so. I f Arg ueta’s sole “intent was to be taken into custody ,” then “no r ational trier of f act c o u ld

con c l u d e [ he] was g uilty o f the specific intent crime o f attempted illeg al reentry .” Id. at 930 & n.3. The district court’s verdict thus rested on an erroneous leg al standard.

B

W h en a distr i ct court in a bench trial has made a leg al

error r eg arding the elem en t s of an offense, the e rror is reviewed using

the same harmless error standard that would apply to an erroneous jury

instruction. See W

ilson v. United States
, 250 F .2d 312, 323–24 (9th Cir. 1957). “ A n error in d escribing an e lement of the offense in a jury instruction is harmless only if it is clear bey ond a reasonable doubt that a rational jury w ould have found the def e ndant g uilty 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). According ly
, the quest ion here is whether it is clear bey ond

a reasonable doubt that t h e d istrict court would have f ound Arg u eta g uilty absent the error. The g overnment arg ues the district court’s error was harmless on two indepe n d e n t theories. W e a ddress them in turn, finding neither persuasive.

1

The g overnme n t a

r g u e s L o m b e r

a

- Valdovinos applies only when there is no evidence of a n y thing other than the intent to be taken into custody

. I n the g overnment’s view, where, a sU N I T E D S T A T E S V

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G U E T A -R O S A L E S 16

here, there is substantial e vidence of the defendant’s specific intent to e n ter the U nited States free from o fficial restraint, Lombera-Valdovinos “is of n o im p o r t , ” even if there is also substantial evidence of the intent to enter into custody

. W e disag ree, and take this opp o r t unity to c larify LomberaValdovinos

.

I t is t r u e t h at in Lombera-Valdovinos we said “this case presents a rare set of factual circumstances where there is no evidence o f any

thing o ther than the intent to be taken into custody .” 429 F .3d at 930 n.3 ( e mphasis added). W e made that statement, however, in the course of reviewing the denial of the defendant’s Rule 29 motion for judg ment of a cquittal. See id. at 928, 930. Under that standard, we w ere required to affirm the defendant’s c o n viction so long as any rational trier of f a c t co uld have found he possessed the specific intent to enter free from official r estraint. See id. Thus, by pointing to the complete absence of contrary evid e n ce, we were simply apply ing that hig hly d eferential standard of re v i e w

. W e did

n o t h o ld that any evidence of an unlawful intent would compel a conviction. W e now clarify that where, as h ere, there is contradictory evidence reg arding the defendant’s intent, it is for the trier o f f a c t to determine whether the
g overnment has proven unlawful intent bey ond a reasonable doubt. T h e g overnment’s c ontention that LomberaValdovinos i s l i m i t e d to cases in w hich there is no evidence of a specific intent to e nter the United State s f r e e from official restraint is without merit. W e reject the g overnment’s
arg ument the d i s t r i c t court’s error was harmless o n this
g round.

That being said, we also clarify that the g overnment need
not prove that entry free from official r estraint wa s the defendant’s sole intent. The g overnment must p rove only thatU N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 17

A rg ueta had a specific intent to enter the United States f r e e from official restraint, not that this was his only purpose. See Lombera-Valdovinos , 429 F .3d at 928 (noting the defendant “c r o s s [ e d] the border with the intent o nly to be imprisoned” (emphasis added)); c

f. U nited States v. Shabban
, 612 F .3d 693, 696 & n .1 (D.C. Cir. 2010) ( “As Shabban concedes, evidence that a defendant had multiple intentions d o e s not

mean there w as insufficient evidence of the requisite statutory intent.”); United States v. Julian
, 427 F .3d 471, 4 85 ( 7th Cir. 2005) ( “A defendant need not facilitate someone’s interstate

or foreig n travel with the sole or principal intent that he
eng ag e in prostitution in order to be liable u nder section 2421, so long as prostitution was a sig nifica n t motive.”); United States v. Fairchild
, 122 F .3d 6 05, 612 (8th Cir. 1 997) (holdin g t h a t “only one o f the [ d efendant’s] intentions must meet the elements of the o f f e n se”); 1 W a

y ne R. L aF ave, Substantive Criminal Law § 5 .2 (2 d e d

. 2015) (“I t may be said that, so long as the defendant has the intention required by the definition of the c rime, it is immateria l that he may also have h ad some other intention.”). Similarly
, if Arg ueta “actually intended to sneak into the country , and chang e d his plans only when he was spotted” by the border pa t ro l
, he
ag ain would be g uilty

. Lombera-Valdovinos
, 429 F .3d at 930.

2

I n the alternative, the g o vernment c o ntends the e rror was harmless because there was o verwhelmin g evidence o f Arg u eta’s in t e n t t o e nter free from official restraint. W e ag ain disag ree.

There was, to be sure, e vidence that Arg ueta crossed the b order w ith the specific intent to enter free from official

r e s traint. H e scaled a border fence in an area in wh i ch
,U N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 18

according to one border p atrol a g ent’ s testimony
, there was

a 50–50 chance of eva d i n g d e t ection. I f he had wanted to turn himself in, he could h ave presented himself at the port o f entry located less than two miles away

. W hen he crossed into the U n i t ed States, Arg ueta was walking away from Ag ent Alvarado rather than toward h im. W hen Ag ent Schwinn first shouted to Arg ueta, he did not stop. I n his in i tial encounter with A g ent Schwinn, Arg u e t a d id not say he was seeking protective custody

. W hen asked his destination d u r i n g his post-arrest interview, Arg u eta identified L os Ang eles.

E v i d ence also pointed in the other direction, h oweve r. Arg u eta crossed into the United States in broad d a y lig ht in a heavily patrolled area. W hen Ag ent A lvarado spotted him on t h e United States side of the primary fence, he w as wa l k i n g normally
, not running

. W he n h e was c onfronted by Ag ent Schwinn, Arg ueta did not r un. W hen A g ent Schwinn offered Arg u eta the o pportunity to climb the fence back into Mex ico rather than being arrested, Arg ueta d e c l i n ed the o ffer

– evidence fully consistent with Arg ueta’s contention that he crossed into the United States to e n ter protective custody

. Dr. Yanofsky te s tified Arg ueta was under a drug -induced
psy chosis, suffering from delusions, and had entere d the United States to seek protection, testimony the district court credited. Arg ueta told Dr. Yanofsky he made numerous calls
to 9 -1-1 b efore reaching the United States border in a f urther attempt to obtain p rotection from United States authorities (althoug h no phone was f ound on Arg ueta’s person when he

was a rrested). I n his post-arrest interview, Arg ueta referred
to people chasing him and said he was in fear of persecution and torture; and A rg ueta’s biz arre behavior at the p ost-arrest interview confirmed his delusional state. Althoug h Arg ueta did not c ross at the port of entry , the district court found this

w a s consistent with Arg ueta’s perceptions of an immed i a t eU N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 19

t h r e a t to this life. A lthoug h Arg ueta told the ag ents hi s destinati o n w a s L o s Ang eles, he could have easily misunderstood this question in c ontex t as referring to his earlier crossing

into the United States.

F or these reasons, it is not clear bey ond a reasonable dou b t the district court would have found Arg ueta g uilty absent its misapprehension of the specific intent e lement. The error therefore was not harmless. 4

I V

I n his concurring opinion, J udg e B y bee sug g e sts our court should use this case as a ve h i c l e t o r econsider en banc three
sets of circuit prece dents: (1) our holding s in cases such a s United States v. Oscar
, 496 F

. 2 d 492, 493–94 (9th Cir. 1974), and United States v. Pacheco-Medina
, 212 F

. 3d 11 6 2, 1163–66 (9th Cir. 2000), that, for i m m i g ration purposes, “entry ” is a term of art that requires n o t o nly phy sical
presence in the United States b ut also fre e d o m f rom official restraint; (2) our holding in U nited States v

. G racidasUlibarry
, 2 31 F .3d 1 188, 1193 (9th Cir. 2000) (en banc), that attempted illeg al reentry under 8 U.S.C. § 1326 is a specific intent c rime; a

nd (3) our holding in United States v. LomberaValdovinos
, 429 F

. 3 d 9 27, 929 (9th Cir. 2005), that “ official

r e s t r a i n t ” e n c ompasses restraint by g overnment officials other than th o s e o f the Department of Homeland Security (DHS). I n our view, each of these precedents rests on a solid footing

.

4 A rg u eta arg u es rem an d is n o t r e qu ired b ecau se t h e d istrict co u rt h as alread y f o u n d a reaso n ab l e do u

b t as t o w h eth er h e cro ssed in to th e Un ited States w i th th e sp ecif

ic in ten t to en ter th e co u n try f ree f ro m o ff icial restrain t. Hav in g rev i e w e d t he reco rd
, w e are n o t p ersu ad ed th e d istrict

co u rt h as m ad e su ch a f

in d i n g . W e th eref

o re rej ect A rg u eta’ s arg u m en t.U N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 20

A

J udg e B y bee would have us reconsider our long standing view that, for immig ration purposes, “ e n t r y ” is a term of art requiring not only phy sical presence in the United States but also freedom from official restraint. As J u d ge B y bee
recog niz es, this principle was established more than a century ag o, see, e.g. , Ex parte Chow Chok
, 1 61 F

. 627, 628–31 (N.D.N.Y.), aff’d 1 63 F

. 1021 (2d Cir. 1908), and h a s long been recog niz ed n ot only by this court b u t a lso b y the Supreme Court, see Kaplan v. Tod
, 267 U.S. 22 8
, 230–31 (1925); United States v. Ju Toy
, 198 U.S. 253, 2 63 (1905), other federal circuits, see, e.g. , D i m ova 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. A tt’y Gen. U.S.
, 7 47 F .3d 164, 170 (3d Cir. 2014); United States v. A n g e l e s

Mascote
, 2 06 F .3d 529, 531 (5th Cir. 2000 ) ; Vitale v. INS
, 463 F .2d 579, 581–82 (7th Cir. 1972); Ny i r e n d a v. INS
, 279 F

. 3d 620, 623 (8th Cir. 2002), and the B oard o f I mmig r a tion Appeals, see, e.g. , Matter of Martinez-Serrano
, 25 I

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

. & N. Dec. 467, 468–69 ( B I A 1973). J udg e B y bee o f f e rs no persuasive justification for castin g a s i d e t h i s long standing a

nd widely accepted understanding of what it means to enter the United States.

J udg e B y bee perhaps believes this understanding o f “entry ” should be preserved for immig ration purposes g enerally but should not apply to criminal immig ration laws such as 8 U.S.C. § § 1 3 2 4
, 1325 and 1326. Concurrence at 30–34. Here ag ain, however, J udg e B y b ee’s view co n f

l i c ts not only with the long standing law of this court but also with the law of other circuits. See, e.g. , United S t a t e s v

. Macias
, 740 F .3d 96, 100 (2d Cir. 2014); Angeles-Mascote
, 206 F .3dU N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 21

at 531; United State s v

. Cardenas-Alvarez
, 987 F .2d 1129, 1133 (5th Cir. 1993); United States v. Kavazanjian
, 623 F .2d 730, 7 36–37 (1st Cir. 1980); United States v. V a s i l a t os , 209 F .2d 195, 197 ( 3 d C i r. 1954). W e see no reason for ado p t i n g one meaning of entry for immig r ation purposes g enerally but a different meaning f or criminal immigration laws, much less doing so to create a circuit split.

I ndeed, there are a t least two persuasive reasons for continuing to adhere to this long standing and widely accepted doctrin e

. F irst, as J udg e B y bee recounts, the d octrine has been around for decades, and, alth o ug h Cong ress has amended the criminal immig ration laws in the interim, it has

never called i n t o question or ex pressly overruled the f irmly established judicial g loss on “entry .” As the Supreme Court has observed on many occasions
, “Cong ress is p r e sumed to be awar e of an administrative or judicial interpretation of a statute a nd to adopt that interpretation when it re- en a ct s a statute without chang e .” 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. H older
, 602 F .3d 1092, 1100–01 & n.8 ( 9th Ci r

. 2 010) (interpreting the w ord “ admission” in § 1 101(a)(13)(A) in lig ht o f ex isting B I A precedent requiring freedom from restraint). 5

5 J u d g e B y

bee su g g ests th e o f

f icial restrain t d o ctrin e m ay n o lo n g er b e

v alid af ter th e en actm en t o f th e Illeg al Im m ig ratio n Ref

o rm an d Im

m ig ran t Resp o n sib ility A ct o f 1 9 9 6 (IIRIRA ), w h ich h e say s “ elim in a t e d t h e

co n cep t o f

‘ en try ’ f ro m th e INA alto g eth er.” Co n cu rren ce at 3 5

– 3 6 n .3

. T h is arg u m en t is u n

persu asiv e. First, th e p ro v isio n J u d g e B y bee f o cu ses

o n , 8 U.S.C. § 1 1 01 (a)(1 3 )(A ), ex p ressly co n t in u es to rely o n th e co n cep t

o f “ en try ,” b y u sin g th at term as p art of th e d e fi n itio n o f “ ad m issio n .” Seco n d
, as J u d g e B y

b ee ack n o w led g es, w e h av e alread y h eld
, in Pa ch eco

Med in a , 21 2 F.3 d at 1 1 66
, th at IIRIRA ’ s ch an g es to § 1 1 0 1 (a)(1 3 )(A ) did

n o t alter th e estab lish ed m ean in g o f “ en tr y ” u n d er § 1 3 2 6

. T h ird
, w h enU N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 22

Second, the o fficial restraint doctrine is a practical necessity

. I n its ab s e n c e, mere phy sical presence in the United States, withou t permission, would g ive rise to criminal liability for illeg al r eentry u nder § 1 326. See United States v

. B a r r agan-Cepeda
, 29 F .3d 1378, 1381 (9th Cir. 1994) (list i n g the elements o f § 1 326). We dou b t Cong ress intended to make criminals out of persons who, f o r any number o f innocent reasons, approach immig ration off i c i a ls at the border. B ecause “in a literal and phy sical sense a p erson

c oming from a

broad enters the United States whenever h e reaches any land, water or air space within the territorial limits of this nation,” “freedom from official restraint must be added to phy sical presence befor e e n t ry is accomplished.” Vasilatos
, 209 F

. 2d at 197.

B

J udg e B y bee also questions our holding in United States

v. G racidas-Ulibarry
, 231 F .3d 1188, 1 190, 1196 ( 9th Cir. 2000) (en banc), that attempted illeg al reentry i s a specific intent crime, citing four circuits th a t h a ve 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. 2 004) ; U n i ted S tates v. Peralt-Reyes
,

Co n g ress ad o p ted IIRIRA in 1 9 9 6
, it also retain ed an d ev en ex p an d ed th e

u se o f th e term “ en try ” u n d er § § 13 2 5 an d 1 3 2 6

. S ee P u b. L

. No

. 1 04

- 2 0 8
, Div

. C
, T itle I, § 1 0 5
, T itle III, § 3 0 5 (1 9 96 ). Giv en t h at “ en try ” h ad

a f irm l y estab lish ed m ean in g at th at tim e

– f reed o m f ro m o f f icial restrain t

– w e can in f

er th at Co n g ress i n ten d ed to retain t h a t m ean in g w h en i t ad o p ted IIRIRA

. Leza ma -Ga rcia v. H o ld er , 6 66 F.3 d 5 1 8 (9 t

h Cir. 2 0 1 1 ),

u p o n w h i ch Ju d g e B y

b ee relies, d id n ot a d d r e s s th e “ o f f icial restrain t” d o ctrin e o r th e m ean in g o f en try u n d er § § 13 2 5 an d 1 3 2 6
, an d t h eref ore d o es n o t cast d o u b t o n o u r lo n g stan d in g p reced en t ap p ly in g th e o f f icial restrain t d o ctrin e to en t

ry u n d er § § 1 3 2 5 an d 1 3 2 6

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

. A R

G U E T A -R O S A L E S 23

131 F .3d 956, 957 (11th Cir. 1997); U n i t e d States v. ReyesMedina
, 5 3 F

. 3d 327, a t *1 (1st Cir. 1995) (unpublished). Concurrence at 39 & n.5. All f o u r of those cases, however,

were d ecided before the Supreme Court’s decision in United States v. Resendiz-Ponce
, 5 49 U.S. 102, 106–07 (2007), which c onfirmed that the attempt prong of § 1326 incorporates the common law meaning o f attempt, including

an element requiring the s pecific intent to commit the underly ing crime. R e

sendiz- P o n ce confirms that GracidasUlibarry was correctly

decided.

C

F inally
, J udg e B y

bee questions our holding in United States v

. Lombera-Valdovinos
, 429 F. 3 d 927, 929 ( 9 th Cir. 20 0 5), that official restraint “ encompasses restraint by any g overnment official, not just officials o f D H S,” the Department of Homeland Security

. Co n currence a t 40. He contends official r estraint has “alway s be e n limited to phy sical restraint or surveillance of an alien by a g overnment officer operating at or just inside the b o r d e r

. ” Concurrence at 40.

Official restraint, however, “need not be by immig r ation officers,” Correa v. Thornburgh
, 901 F .2d 1166, 1172 (2d Cir. 1990); see, e.g. , Zhang v. Slattery
, 55 F .3d 732, 7 5 3, 755 (2d Cir

. 1 9 9 5) (shipwrecked alien restrained by local police
upon r eaching shore), superseded b y statute on other grounds

as recognized in City o

f New Y ork v

. Permanent Mission of India to United Nations
, 618 F .3d 172, 201 ( 2d Cir. 2 010); Edmond v

. Nelson
, 575 F

. Supp. 532, 535 (E.D. L a. 1 983) (aliens seeking entry b y sea “restrained” by the master o f a rescuing ship, acting pur s u a nt to g overnment reg ulations); Matter of Y

am , 16 I

. & N

. Dec. 5 3 5, 536–37 (B I A 1 978)U N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 24

(alien found at the b order and taken under g uard by local police to a medical facility )
, a n d it need not be at the border,

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

was under official restraint even thoug h she w as “ h a n d e d

over to the Hebrew Shelt e r ing a nd I mmig rant Aid Society
, ” which in turn allowed her to live with her father).

The position J udg e B y

bee advances in his concurrence is contrary not only to this p recedent but also to the position the
g overnment i t s e l f a

rg ued to us in Lombera-Valdovinos
, where the g o v ernment e x pressly rejected the proposition that “ o nly Department of Homeland Security r estraint constitutes official res t r a int under section 1326.” The g overnment arg ued there that “an alien is no t d e emed to have entered unless he is free to g o at larg e” within the United States, the
very principle we followed in L o mbera-Valdovinos

. J udg e By b e e , therefore, is seeking to relitig ate a rule of law t h e g overnment ex pressly a dvocated for in Lombera-Valdovinos – and which it has not asked us to reconsider now.

Nor has J udg e B y

bee sug g e sted a rationale for criminaliz ing conduct such as that eng ag ed i n b y the defendant in Lombera-Valdovinos

. L ombera-Valdovinos crossed the b o rder, walked directl y u p to a border control
ag ent and asked to be taken into custody

. He n e ver soug ht to evade detection. He never soug ht the freedom to g o at larg e within the United States. He n either soug ht nor “ g a ined a foothold in the United States.” Kaplan
, 267 U.S. at 230. W e

see no reason Cong ress would have intended § 1326 to reach such conduct.

J udg e B y bee alternatively sug g ests Lombera-Valdovinos

s h ould be reconsidered o n a p ractical g round – becau s e i t would allow defendants to a void liability for attempting toU N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 25

reenter the United States by opportunistically a sserting
, a fter d e t e ction, that they crossed into the country solely to b e placed into official c u stody

. Concurrence at 4 3

– 4 4. He
arg ues requiring the g overnment to prove be y o n d a reasonable d oubt that the d e f endant had the specific intent to enter the United States f

ree from o fficial r estraint imposes too g reat a burden on prosecutors.

This speculation seems unfounded. W hen a pers on is spotted by b order patrol ag e nts crossing into the United States, away from an official port of entry , th i s alone is compelling evidence that the p erson intends to a chieve not only phy sical presence in the United States but also f reedom from official r estraint. 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 h ere unless a dequately ex p lained
away , “much as a face covered by jam nea r a j a m jar is convincing proof of

jam-eating unless otherwise ex plained”). Certainly there may be unusual c ases in which persons could be acqu i tted of a ttempted illeg al r eentry where, as in Lombera-Valdovinos
, they cross the border, walk directly up to a b order control ag ent and a s k to be taken into custody

. B ut such c ases present “a rare set of factual circumstances.” Lombera-Valdovinos , 429 F .3d at 930 n.3. I n the more than 10 y ears Lombera-Valdovinos has been on the b ooks, it has not, to our knowledg e , hindered effective prosecution o f those who attempt to e n t e r t h e United States unlawfully

. I ndeed,

we are aware of only a sing le c ase

– L o m b e ra-Valdovinos itself – in which a

n individ u a l h as b een acquitted o n this
g round.U N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 26

V

B e cause the dist rict c ourt applied an incorrect leg al standard, we vacate Arg ueta’s c onviction and sentence in No. 14-50384 a

nd v acate the revocation of supervised release a nd
sentence in N o. 14-50385

. W e remand for proceeding s consistent with this opinion.

VACATED AND REMANDED.

B YB EE, Circu i t J udg e, c oncurring in the judg ment a nd dissenting as to every

thing else:

I ag r ee with the majority that the specific-intent standard that g overns Arg ueta-Rosales’s case is supplied by United S t ates v. Lombera-Valdovinos
, 429 F .3d 927, 928–30 ( 9 t h Ci r

. 2 0 0 5 )

. B ecause the d istrict court failed to apply that standard, and because we are bound by Lombera-Valdovinos
, I c oncur in the majority ’s judg ment vacating the conviction and remanding

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

I n all other respects, however, I dissent. I a m convinced that Lombera-Val d

o vinos was wrong ly decided and that our understanding of when an a l i e n is “free from official restraint” has reached an absurd position. Un d e r LomberaValdovinos
, an alien is not g uilty of attempted illeg al reentry

even if he crosses into the United States surreptitiously a nd outside a port of entry , so long as he tells border c ontrol that he c a m e i n hopes of remaining u nder restraint by a ny g overnmen t official—even in a federal prison f ar from the b o r d e r—once in the U nited States. J udg e Ry mer rig ht l y pointed out in dissent from Lombera-Valdovi n o s that thisU N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 27

novel and unduly ex p ansive definition of “official r estrai n t” makes no sense and creates a puz z ling loophole in the law o f attempted illeg al reentry

. S e e Lombera-Valdovinos
, 4 29 F .3d
at 9 31–33 (Ry

mer, J

. , dissenting ). T he passag e of time has done nothing to blunt the force of her critique. I t is time we revisited Lombera-Valdovinos

.

I

I beg in by tracing the history that le d u p to LomberaValdovinos
, because it was a case in which “what’s past [was] prolog ue.” W illiam Shakespeare, The Tempest a c t 2
, sc. 1. Over r oug hly the last 100 y ears, the term “entry” has taken on

a “narrower meaning than its colloquial usag e” in the c ontex t of immig ration law. Lombera-Valdovinos
, 429 F .3d at 928. F or purposes of 8 U.S.C. §§ 1325–26, a n alien is considered
not to h a ve effected a

n “entry” into the United States unless he not only “cross[ es] the

. . . border,” but does so “free from official restraint.” U

nited States v. Hernandez-Herrera
, 273 F .3d 1213, 1218 (9th Cir. 2 001). The provenance of the official restraint doctrine—and the future of t h e doctrine, a s evidenced by Lombera-Valdovinos and this cas e

— should make u s rethink the concept of what it mea n s t o e n ter the United States.

A

Courts adopted this p eculiar definitio n of “entry”

— freedom from official r estraint—because, for many y ears, immig ration law d re w a distinction between exclusion a nd deportation

. Ex cluded aliens were those who were summarily sent home at the border, in contrast to aliens w ho

we r e afforded the more elaborate process of deportation because they

were “already phy sically in the United States.”U N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 28

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

v. Davis
, 533 U.S. 6 78, 693 (2001) (“The distinction b etween

an alien who has effected an entry into the United States a nd

one who has never entered r u ns throug hout immig r ation law.”). The distinction was a crucial one. B y virtue of their
presence in the United S t a t es, aliens in deportation proceeding s h ad g r eater pr ocedural and substantive rig hts than a liens in ex clusion proceeding s—an administrative hearing and an appeal, the rig h t to d e s i gn a t e the country o f deportation, and the rig h t to seek voluntary departu r e. Landon
, 459 U.S. at 26. B y c o n trast, an ex cludable alien is

a determination at the b o rd e r , “usually

. . . at the port o f

e n t r y

. ” Landon
, 459 U.S. at 25. As the Court ex plained in Zadvydas
, “certain constitutional protections available to persons inside the United States are unavai l a ble to a liens outside our g eog raphic borders. B ut once an alien enters the country , the leg al circumstance chang es, for the D ue Process Clause applies to all ‘persons’ w ithi n t h e U nited States, including aliens.” 533 U.S. at 693. See gener a l l y David A

. Martin, Graduated Application of Constitutional Protections for Aliens: The Real M

eaning of Zadvydas v. D avis
, 2001 Sup. Ct. Rev. 47, 92–100.

The distinction between ex cludable and deportable a liens required courts to confront a larg ely metaphy sical, but tricky immig ration law problem: W hat was to be done about a liens who phy sically crossed the United States borde r but never reached the point o f being able to move freely wi t h i n the country and mix with the g eneral p opulation? The paradig m

ex a mple for this is an alien who presents himself at a port o f entry and is taken to a “ secondary insp e ct i o n ” area, technically across the i n ternational b order, for f urther investig ation into whether h e is authoriz ed to enter the United States. W a s the ali e n n o w entitled to a deportationU N I T E D S T A T E S V

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G U E T A -R O S A L E S 29

proceeding because border ag e n t s w a lked him a few feet

across the border? The courts res p o n d e d to this conceptual ambig uity about w h ich due process rig hts apply in the immig ration contex t by d e v eloping the “leg a l fiction that entry is not accomplished until a person is free f rom official restraint.” U

nited State s v. Parga-Rosas
, 238 F .3d 1209, 1213 (9th Cir. 2 0 0 1 )

. U n der this leg al f iction, an alien w ho

never made it out of a port of entry , who was h eld temporarily b y the United States, or who crossed the border
at some other place but was neve r outside the control of the border authorities, would be deemed not to have entered the Un i t e d S tates d espite 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 I s land she was to be reg arded as stopped a t the boundary line and kept there unless and until her rig h t to enter should be declared.”); United States v. Ju Toy
, 198 U.S. 2 5 3, 263 (1905) (holding that an alien detained at a port o f entry , “althoug h phy sically within o ur bounda r i e s, is to be
reg arded as if he had been stopped at the limit of our jurisdiction, and kept there while his r ig ht to enter was under debate”).

Although i t was relatively easy to determine whether an alien entered the United States w hen he presented himself for inspection at a p ort 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 g enerally c redited w i th inaug urating the official restraint doctrine in this area is a Chinese ex clusion case, Ex Parte Chow Chok
, 161 F

. 627 (N.D.N.Y.), aff’d
, 163 F

. 1021 ( 2d Cir. 1 9 08). See Lombera-Valdovinos
, 429 F .3d a t 9 2 9 ; P a c heco-Medina v. Untied States
, 212 F .3d 1 1 62, 1163

– 6 4 (9th Cir. 2000). I n that c a se U.S. inspectors had tracked eig ht Chinese aliens as they cr o s s e d from Canada into the UnitedU N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 30

States. The aliens were “kept

. . . in sig ht,” stopped a quarter of a mile inside the United States
, a n d t a ken into custody

. Chow Chok
, 161 F

. at 6 2 8

. T h e aliens filed for a writ o f habeas corpus, contending that, b e c ause they had successfully entered the United States
, t h e y c o uld only b e deported, not

ex c luded. The court found, however, that the aliens had not

suc c e s s fully entered the United States because “from the
moment w h e n they crossed the border, they were in the actual, thoug h not formal, cu s t o dy of the inspectors.” Id. at 630. A ccording ly
, they were onl y entitled to administrative processing and could be ex cluded.

B

Althoug h the “entry fiction” doctrine beg an life as a

means of ex cluding aliens a t o r n ear the border without affording them deportation proceeding s, it soon crossed over into the realm of criminal law. Courts b eg an to interpret the
term “enter,” in criminal statutes, as a t e r m of art whose meaning roug h ly corresponded to the con t o u r s of the entry fiction doctrine in immig ration law.

F or ex a mple, in United States v

. Vasilatos
, 209 F .2d 195 (3d Cir. 1954), a Greek seam a n w ho had previously been deported from the United States falsely repr e sented to an immig ration officer a t the Port of Philadelphia that he h ad

never been deported and thereby g ained temporary admission
to the United S t a t e s. Id. at 196–97. The seaman stay e d on his ship unt i l i t c alled at B altimore, w here he disembarked and headed inland. W h en he was a pprehended in New York

a y ea r later, he was charg ed with illeg al reentry

. I d. at 197. The g overnment alleg ed that the seaman had “entered” the United States at Philadel p hia, making that c ity the proper

v e nue for h is trial; the seaman arg ued that his entry h a dU N I T E D S T A T E S V

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G U E T A -R O S A L E S 31

occurred at B altimore and that B altimore was thus the proper

venue. Id.

The then-prevailing illeg al reentry statute ( 8 U.S.C. § 180 (1946)) d id not define wh a t constituted an “entry ” into the United States, and there was no g eneral definition of the term elsewhere in Title 8, so t h e Third Circuit—understandably —looked to the “official restraint” cases for g uidance as to when an e ntry occurred. T h e court observed that “administration of the immig ration laws has long proceeded

on th[ e official-restraint] theory o f entry ” and saw “no reason to d i s t u r b” that theory in the contex t o f the criminal law. Vasilatos
, 209 F .2d at 1 97. I t therefore held that the seaman had “entered” the United States at Philadelp h i a , where his fraudulently obtained clearance f or temporary a dmission h ad first g iven him freedom from official restraint, rather than at B altimore, where he had phy sically landed in the country

. Id.

After the r elevant events in Vasilatos occurred, but before the Third Circuit issued its decision, C o n gr ess enacted the I mmig r a tion and Nationality A ct of 1952, w hic h c ollected and r eorg aniz ed the various p rov i s ions of American immig ration law in one place: T itle 8. The Act’s definitional provision defined the term “entry” very broadly as “any coming o f an alien into the United States, from a foreig n port or place or from an outly ing possession, whether voluntarily

or otherwise.” 8 U

. S

. C

. § 1 1 01(a)(13) (1952). B ut despite the f acial breadth of this definition, the c ourts were u nwilling
to d o away with the traditional requirement of freedom from official restraint. Rather, they simply a ssumed without much

ex p lanation that § 1101(a) (13) had incorporated the
preex isting judicial doctrine of o f ficial restraint. S

e e, e.g. , I n

r e Dubbiosi
, 191 F

. Supp. 65, 6 6 (E.D. Va. 1 961) ( a cknowledg ing the a d o ption of 8 U.S.C. § 1101(a)(13) b u tU N I T E D S T A T E S V

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G U E T A -R O S A L E S 32

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

removes the requireme n t o f establishing n ot only phy sical
presence, but also freedom from official restraint, b ef o r e ‘entry ’ is accomplished”).

At our first o pportunity
, in United States v. Oscar
, 496 F .2d 492 ( 9th Cir. 197 4 )
, we adopted the same view o f what constitutes an “entry” for criminal purposes. Oscar a nd

an accomplice arrang e d for two H onduran nationa l s to be driven to the San Ysidro Point of Entry
, where the Hondurans lied to customs officials and said they were Un i t ed States citiz ens. The Hondurans were taken to secondary inspection

a n d l a t e r arrested. Id. at 492–93. Oscar was subsequently convicted under 1 8 U .S.C. § 2 of aiding and a betting an illeg al entry into the United States.

W e reversed the conviction, holding that Oscar could not be g uilty of aiding and a

betting because the two Hondurans had not committed the underly ing offen s e of illeg al entry under 8 U.S.C. § 1325. W e acknowledg ed th a t the two h ad

come into the U nited States “[ i] n a phy sical sense” when they moved to secondary inspection, which ostensibly was enoug h
to satisfy the broad definitio n o f “entry” in the 1 952 Act. Oscar
, 4 96 F .2d at 493. B ut we ag r eed with Vasilatos ’s a nd Dubbiosi ’ s holding s that “entry ,” for immig r a t ion-related
purposes, r e quires freedom from official restraint. I d

. at 493–94. W e reasoned that althoug h Vasilatos and Dubbiosi

were n ot f

actua l ly analog ous to Oscar’s case, it made sense for us to a dopt their approac h t o “entry” because Cong ress had chosen to define “ e ntry ” in § 1101(a)(13), an d i t w a s “unlikely that Cong ress would define a term in § 1101 . . . if it intended the term to h a v e different meaning s” in differentU N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 33

contex ts. I

d. at 493–94. 1 That consideration, a long with the rule of lenity
, led us to conclude that the Hondurans had not “entered” the U nited States because they had not left the Port of Entry and thus never escaped “ offi c i al restraint.” Id. at 494.

I n s ubsequent cases interpreting 8 U.S.C. § 1326, th e illeg al-reentry statute, w e adopted the sa m e view of “entry ” that O sca r a p p l ied under § 1325, holding that an illeg al reentry required both phy sica l entry into the country a nd freedom from official restraint. 2 F or ex a mple, in United States v. Martin-Plascencia
, 532 F .2d 1316 (9th Cir. 1976), the d efendant was charg ed w ith u nlawful entry

. He had g o ne

near the port of entry at San Ysidro a nd cra w led throug h a hole in o ne chain link fenc e an d u n d e r a second. He was caug ht 50 y ards into the Unite d S t a t es. W e rejected his
arg ument that he was under official restraint because he h ad not “reach[ ed] the streets of San Ysidro”:

w h ile nominally within the confines of the Port of Entry
, [ d efendant] was at no instant up until the moment of h is a rrest under any ty

pe

1 Osca r s eem s to h av e a s s u m e d i n erro r th at Va sila to s rested o n an in terp retatio n of § 1 1 01 (a)(1 3 )’ s d e fi ni tio n o f “ en try .” Osca r , 4 96 F.2 d
at 4 9 3

– 94

. Bu t Va sila to s ex p ressly stated t h at it d id n o t. T h e V

a si l a t o s

o p in io n issu ed af

ter § 11 0 1(a)(1 3 ) w as ad o p ted
, b u t th e r e l ev an t ev en ts

o ccu rred b ef

o re th e s t atu te to o k ef

f ect. Va sila to s , 2 0 9 F.2 d at 1 9 6

– 9 7

. T h u s, w h en w e co n sid ered th e im

p ort o f § 1 1 0 1 (a)(1 3 ) in Osca r , w e w ere

w ritin g o n a clean er slate th an

w e realized

.

2 S ee, e.g

. , Un ited S ta tes v. Go nza lez-To rres , 3 0 9 F.3 d 5 9 4
, 5 9 8

– 9 9 (9 th Cir. 2 0 0 2 ); Un i ted S ta tes v. Hern a n d ez-Herrera
, 2 7 3 F.3 d 1 2 1 3
, 12 1 8

– 1 9 (9 th Cir. 2 0 0 1 ); Un ited S ta te s v. Ca stella n o s-Ga rcia
, 2 7 0 F.3 d 7 7 3
, 7 7 5

– 7 7 (9 th

Cir. 2 0 0 1 ).U N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 34

o f o f

ficial restraint, but to the c ontrary wa s

ex e rcising his free wi l l
, y outhful enterprise,

a n d phy sical ag ility in evading fix ed barrier s in accomplishing his entry

.

Id. at 1317. See also United States v. Aguilar , 883 F .2d 662 (9th Cir. 1989).

C

W e substantially broa d ened o ur understanding of the official restraint doctri n e i n U n i t e d States v. Pacheco-Medina
, 212 F .3d 1162 (9th Ci r

. 2000). Pacheco was climbing the international fence betw e en t he United States and Mex ico when h e was picked u p b y a surveillance camera. The monitor sig naled a B order Patrol ag ent on a bicy cle
, a n d he arrived just as Pacheco dropped off the fence, “ c r o u c hed in preparation for escape in the country at larg e.” Id. at 1163. Pacheco ran, but was quickly apprehende d

. W e overturned his conviction for unlawful entry because, althoug h he “tried
to g et into the country ” and, in fact, had succeeded in g etting

on U

. S

. soil without permission, “he was under official restraint the whole time.” I d

. at 1165. Of course, Pacheco

was not under “offi c i a l restraint” the “whole time,” at least

no t in the sense in which immig ration law created the doctrine to disting u ish between deportable an d ex cludable aliens.

I t is worth pausing h er e to consider how far our conception of “official restraint” had str a y e d from the meaning developed in im m i gr ation law up until PachecoMedina

. Recall that the “official restraint” disti n c t ion developed to ex plain w hy w e g ave diff e r e n t due process rig hts to aliens who obtained a ccess to the United St a t e sU N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 35

(lawfully or unla w f

u lly ) than aliens who presented themselves f

or admission and, te c hnically —but only technically and temporarily —found themselves st a n ding on U.S. soil. Pacheco-Medina said that mere surveillance (even mechanical surveillance) by U.S. authorities was the same “official restraint” a s aliens ex perience when they present themselves at a port of entry

. 3

3 In 19 9 6
, Co n g ress ref

in ed th e INA ’ s co n cep t o f law f u l en try

. T h e Illeg al Im m ig ratio n

Ref o rm an d Im

m ig ran t Resp o n sib ility A ct (IIRIRA ) elim in ated th e d ef

in itio n o f “ en try ” f

ro m th e INA

alto g eth er, rep lacin g i t

w ith th e term “ ad m i s sio n

. ” S ee Illeg al Im

m ig ratio n Ref

o rm an d Im m i g ran t Resp o n sib i lity A ct, P u b. L

. No

. 1 04

– 2 0 8 , § 3 0 1 (a), 1 1 0 Stat. 3 0 0 9 (1 9 9 6 ), co d ified a t 8 U.S.C. § 1 1 0 1 (a)(1 3 )(A ). Un d er t h e n ew d ef in i tio n “ ad m i s sio n ” w as “ t h e law f u l en try o f

th e alien in to th e Un ited States af ter in sp ectio n an d au th o rizatio n b y an im m ig rati o n o f

f icer.” (em p h asis ad d ed )). A s w e reco g n ized i n 2 0 1 1
, “ IIRIRA rep laced ‘ en try ’

w ith [th e] n ew co n cep t [o f ] ‘ ad m i ssio n ’ ” an d
, in so d o in g , it rep laced th e d iv id in g lin e b etw een ex clu d ab le an d dep o rtab le alien s w ith a n ew d iv id in g lin e—o n e b etw een la wfu lly a d mitted alien s an d all o th er alien s,

w ith th e latter n o w su

b j ect t o “ m o re g en eral ‘ rem o v al’ p ro ceed i n g s.” Leza ma -Ga rcia v. Ho ld

er , 6 6 6 F.3 d 5 1 8 , 5 2 7

– 2 8 (9 th Cir. 2 0 1 1 ).

Pa ch eco ack

n o w l ed g ed
, b u t rej ected ou t o f h an d
, th e ch a n g e s in d ef in i tio n s in IIRIRA

. A lth o u g h Co n g ress had to ld u s th at l aw f u l

“ ad m issio n ” req u ired “ th e law f u l en try o f th e alien

. . . a fter in s p e c t i o n

a n d a u th oriza tio n ,” 8 U.S.C. § 1 10 1 (a)(1 3 )(A ) (em p h asis ad d ed ), Pa ch eco -Med in a said th at “ [j ]u st w h y [th e n ew d ef

in itio n ] sh o u l d m atter at all is f ar f ro m clear.” T h e f

act t h at IIRIRA elim in ated th e d ef in itio n of

“ en try ”—an d rep laced it w ith so m eth in g v ery d if f eren t—so m eh o w “ h a[d ]

n o sig n if ican ce h ere.” Ev id en tly w e b eliev ed th at Co n g ress h ad n o p l ace in d ef in in g “ en try ”: “ It certain ly d o es n o t ch an g e th e p reex istin g , an d still

ex istin g , j u d icial co n cep t o f w h at an en t ry is.” Pa ch eco , 2 1 2 F.3 d at 1 1 6 6 & n .7

.

T h e m aj o rity s u g g ests t h at Co n g ress’ s ch an g e d o es n o t m a t t e r b e cau se: (1 ) th e term “ en try ” is still u sed w ith in th e d ef in itio n o f

“ ad m issio n ,” (2 ) w e reach ed t h i s i s su e in Pa ch eco , an d (3 ) C o n g ress retain ed th e u se o f th e term “ en try ” in

o th er statu to ry

sectio n s. Maj

. Op

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

. A R

G U E T A -R O S A L E S 36

Pacheco-Medina quickly led to some very st ra n g e

“ h o w

- m a n y

- a n g e l s

- a r e

- d a n c i n g

- o n

- t h e

- h e a d

- o f

- a

- p i n ” inquiries. Consider two cases d ecided shortly after PachecoMedina

. I n Hernandez-Herrera
, Herrera was part of a g roup of aliens w ho scaled the i n t e r national fence. The “ still watch” ag e nt had the g roup under observation, and they were quickly detained by field ag ents. Herrera, however, escaped the ag ents and ran into thick brush w here, u n fortunately for him, he “was f

r e e f r o m o fficial restraint because h e w as no long er visible to the ‘still watch’ ag ent.

. . . [ The field ag ent] followed Herrera’s footprints, and not Herrera.” 273 F

. 3 d at 1219. W e a ffirmed H er re ra’s conviction for illeg al reentry

. B y contrast, in Gonzalez-Torres
, B order patrol age n t W a tkins, using binoculars, observed Torres and others enter the United States. W atkins radioed to a se c o n d a gent, w ho be g a n pursuit. Althoug h W atkins actually “lost sig ht of the
g roup ‘for a number of seconds,’” we found that this g ap in the surveillance was not sufficient to b r eak the officer’s “continuous observation.” 309 F

. 3d at 5 99. W e overturned Torres’s c onviction. The fact that two aliens who commit identical acts and have identical me n t al states a re treated differently based o n whether or not a bor d e r patrol ag ent manag ed to watch them the whole time should g ive us pause.

at 2 1

– 22 n .5

. B u t th i s m i s s es th e po in t. T h e m aj o rity u rg es th at th e

o f f icial restrain t d o ctrin e sh ou ld b e ad h ered to b ecau se it “ h as b een aro u n d f o r d ecad es” an d Co n g ress h as n ev er “ called i n to q u estio n

. . . th e f irm ly estab lish ed j u d icial g lo ss o n ‘e nt r y

. ’ ” Id

. at 21

. B u t i s n o t th at ex actly

w h at Co n g ress h as d o n e? Co n g ress d ecid ed to elim in ate th at term o f art f ro m t h e f ace o f th e statu to ry s ectio n an d rep l ace it w ith so m eth in g else. Fo r m y p resen t p u

rp o ses, I d o n o t h av e to d eterm in e w h at ef f ect IIRIRA

m ig h t h a ve h ad o n th e o f f icial restrain t d o ctrin e. B u t, at th e least, th e q u estio n o f w

h at ch an g es, if an y , IIRIRA w o rk ed o n th e o f f icial restrain t d o ctrin e d eserv ed m o re d iscu ssio n th at it receiv ed

in Pa ch eco -Med in a

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

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G U E T A -R O S A L E S 37

As a theoretical matter, moreover, it is far from clear that the concept of official restraint maps onto c r i minal law particularly well. Official restraint, a f ter all, was desig ned to

answer the question whether an alien in custody co u l d be

ex c luded or must be d eported, w hether he was to be afforded minimal procedural rig h ts o r plenary rig h ts. See Chow Chok
, 161 F

. at 628. W e must, o f course, determine what “e n t ry ”

means in convictions under §§ 1325–26. B ut our concern has nothing to d o with what p r ocess the alien is due. O n c e an alien has been indicted under either of these sections, the
scope of his procedural rig hts is de c i d e d : he is entitled to a tria l b y jury
, see U .S. Const. amend. VI ; representation b y counsel, id. ; and the sundry o ther procedural protections that define our criminal justice sy stem, id. amend. V. “Official restraint” thus ends up bei n g u sed to answer an entirely different question in criminal cases —i.e.
, when the actus reus of illeg al entry or r eentry has been accomplishe d

— a n d
, like
any repurposed concept, produces some odd r esults. F o r

ex a mple, the n otion that a n alien who hops a border fence a nd makes it a substantial d istance into th i s country h as not committed the act of entering the Uni t e d S t ates because he

was u nder constant surveillance defies commo n sense. Perhaps this is why neither § 1325 nor § 1326 nor § 1101(a)(13) mentions any such requirement.

The majority provides little reason f o r a dopting the concept of entry which was d eveloped to discern b etween different due process standards in the immig ration contex t, in the very different contex t of determining when someone has committed the substantive crime of ill e g al reentry

. I t first

warns that the crime of reentry , without the official restraint limitation, w ould unfairly “make criminals o ut of p ersons who, for any number of innocent reasons, approach immig ration officials at the border.” Maj. Op. at 22. IU N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 38

respectfully disa g ree that this is a problem. 4 The lawful
process to enter the U.S. does n ot include walking across the border without permission. That is, by definition, an illeg a l—

or unauthorized

—entry

. W hether or not that person happens
to be under surveillance at the time does nothing to chang e her culpability

.

The majo r ity also sug g ests that we should continue to ap p ly the o fficial restraint doctrine in the criminal c ontex t because “the doctrine has bee n around for decades.” Maj. Op. at 21. B ut the f

act th a t t h i s d o ctrine was adopted long
ag o—without any serious thoug ht e ither at its inception o r since—is precisely

what should g ive us pause.

D

There is one final development I must mention. Prior to Lombera-Valdovinos
, an alien w ho could not be charg ed with illeg al entry o r reentry because he was ne v e r free from official restraint could still be c h a r g ed with attempted illeg al entry or reentry

. See United States v. Leos-Maldona do
, 302 F .3d 1061, 1063, 1 065 (9th Cir. 2002) (holding that an alien can be g uilty of attempted en t r y e v e n if he is under official restraint throug

hout his crossing of the U

. S. border). W e held in United States v. Gracidas-Ulibarry
, 2 31 F .3d 1188, 1 1 95–96 (9th Cir

. 2000) (en banc), that attempted

4 On e d o esn ’ t h av e to lo o k bey on d th is case, L o m b e r a

- V a l d o vin o s, Go n za lez-To rres , o r Pa ch eco to see th at t h ese w ere n o t “ p erso n s w

h o , f or

an y n u m b er o f in n o cen t reaso n s, ap p ro ach im m ig ran t of

f icials.” W h eth er th ese p erso n s are scalin g th e i n tern atio n al f en ce o r ru n n in g th ro u g h d esert b ru sh
, t h ey w ere n o t p erso n s seek in g to “ ap p ro ach im m ig ratio n of

f icials” f o r “ i n n o cen t reaso n s.”U N I T E D S T A T E S V

. A R

G U E T A -R O S A L E S 39

i l l eg al reentry is a specific-intent crime. 5 At the same time

we construed the requisite intent broadly
, concluding that an alien need only h a v e the “consc i o u s d esire[ ] to reenter the United States without t h e e x press consent of the Attorney General.” Id. a t 1196; see also id. at 1198 (“§ 1326 requires

a finding that the defendant consciously desired to reenter the United States without consent.”). Under this stand a r d
, an alien w ho intentionally crossed the border but did not escape official restraint would usually be g uilty of attempted illeg al entry or r ee n t r y , a s suming he could not claim one of the
g eneral criminal-law defenses to specific intent. See, e.g. , United S tates v

. Smith

- B a ltiher
, 424 F .3d 913, 925 (9th Cir. 2005) (holding that a § 1326 defendant was entitled to present

a mistake-of-fact defense ba s e d o n h is a lleg ed belief that he

was a U.S. citiz e n); United States v. Blanco-Gallegos
, 188 F .3d 1072, 1076 ( 9th Cir. 1999) (considering a nd rejecting a § 1326 defendant’s voluntary -intox ication defense on the merits).

I I

Ag ainst this leg a l backdrop, we heard Lomber a

Val dovinos

. A B order Patrol ag ent first saw L ombera standing on the Mex ico side o f the U.S.-Mex ico b order. The

a ge n t l o o ked away for a brief period, a nd when he turned back, L ombe r a was now on the U.S. side of the primary

5 I n o t e th at ev ery o th er circu it to co n sid er th e q u estio n h a s d i s a g r e e d

w ith u s, h old in g th at § 1 32 6 d o es n ot req u ire sp ecif

ic in ten t

. S

ee Un ited S ta tes v. Ro d

rig uez , 4 1 6 F.3 d 1 2 3
, 12 5

– 2 6 (2 d Cir. 2 0 0 5 ); Un ited S ta tes

v. Mo ra l es-Pa l

a cio s , 3 6 9 F.3 d 4 42
, 4 4 6

– 4 8 (5 th Cir. 2 0 0 4 ); Un ited S ta tes

v. Pera lt-Reyes
, 1 3 1 F.3 d 9 5 6 (1 1 th Cir. 1 9 9 7 ) (p er cu riam ); Un ited S ta tes

v. Reyes-Med i na , 5 3 F.3 d 3 27 (1 st Cir. 1 9 9 5 ) (p er cu riam ). A s I o b serv e in tex t, w e h av e g i v e n t he s p ecif ic i n ten t req u irem en t a f

airly g en ero u s read in g , w

h ich m ay h av e ef f ectiv ely n arro w ed th e g ap b etw een u s.U N I T E D S T A T E S V

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f e n ce, walking directly toward the ag ent. The ag e nt drov e toward the defendant, an d w h e n they met, L ombera said, “I
want to see an immig ration judg e,” a dmitted t o b e ing a Mex ican c itiz en, and concede d that he had n o leg al r ig ht to enter the United States. He ex plained that he h a d crossed the border because he “wished to g o back to jail.” L ombera, w ho had previously been deport ed several times, was arrested, charg ed w ith attempted illeg al reentry , and convicted o f that offense by

a jury

. Lombera-Valdovinos , 429 F .3d at 928.

W e reversed the c onviction, holding that no rational trier of fact could conclude that the defendant had t h e specific intent necessary to be g uilty of attempted illeg al reentry

. W e reasoned tha t b e c ause a ttempted illeg al reentry requires the specific intent to re e n t e r the United States without consent, and because an “entry” int o t h e United States requires freedom from official restraint, a d efendant “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, c rucially
, we went on to hold that official restraint “encompasses restraint by any g overn m ent o fficial, not just officials o f DHS.” Id. (emphasis added). Thus, the defendant could n ot be g uilty o f att e m pted illeg al reentry , because his i n tention was to g o to jail—where he would be subject t o “official restraint” by

prison officials. I

d. at 930.

This reasoning rests on an unprecedentedly ex pansive view o f w hat constitutes “official restraint.” Until LomberaValdovinos
, t h e concept of “official restraint”—in b oth the immig ration and the criminal contex t—had never been used
to refer to all forms of confinement by any official o f the U.S.
g ov e r nment. Rather, it had alway s been limited to phy sical restraint or surv e i llance of a n alien by a g overnment officer operating at or just inside the border. See id. at 931 (Ry mer,U N I T E D S T A T E S V

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G U E T A -R O S A L E S 41

J
., dissenting ) (“[ Official restraint] is a term of art for border control.”). And for g ood reason: “Official restraint,” recall, is a leg al fiction used to disting uish betwe en al i ens who a re deemed to have been st o p p e d at the border a nd those w ho have r eached the interior o f the United States. This distinction does not turn on what happens to an alien after he
g ets b ey ond the border. An alien who ends up incar c e r a ted in a federal prison has reached the interior of th e U n i t ed States n o less than an alien who crosses the border undetected and then g ads about the country at perfect liberty

.

Lombera-Valdovinos ’s three ex planation s for its

ex p ansive view of “official rest raint” were unconvincing

. F irst, it cited Oscar for the proposition that o f f i cial restraint is not limited to “officials of DHS,” n o t ing that the official doing the restraining in Oscar w as a “customs official[ ] .” Id. at 929 (majority

opinion). B ut althoug h the relevant official in O scar was not, strictly speaking
, a border patrol officer, he

was working at the San Ysidro Port o f Entr y a n d clearly functioning as part of the border control sy stem. See Oscar
, 496 F .2d at 493. Oscar thus shows, a t m o st, that the notion of official restraint does not de p e nd on where precisely an officer stands on an org a

n i z a t ional chart. I t does not imply that restraint by any g overn m e n t officer, even one not charg ed with any d

uty relating to t h e b o rder, is “ official restraint.” 6

6 Lo mb era -Va ld

o vin o s ’ s reli a n ce o n Osca r as ev i d en ce th at “ o f f icial restrain t” ex ten d s b ey o n d co n f in em en t b y th e Dep a r tm en t o f H o m elan d Secu rity is esp ecially cu

rio u s i n l ig h t o f th e f

act th at sin ce Osca r , th e Cu sto m s Serv ice h as b een co m b in ed w ith th e B o rd er P atro l in t o on e ag en cy (U.S. Cu s to m s an d B o rd er P ro tectio n ), w h ich in tu rn i s u n d er th e

u m b rella o f DHS. See 6 U.S.C. § 5 42 No te. I d o u b t it ev er m ad e sen se, in th is co n tex t, to d raw f in e- g rain ed distin ctio n s b etw een “cu sto m sU N I T E D S T A T E S V

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G U E T A -R O S A L E S 42

Second, Lombera-Valdovinos quoted several c a ses sug g esting that any alien who cannot “g o[ ] a t larg e within the United States” or “mix with the population” is under official restraint. See Lombera-Valdovin o s , 4 29 F .3d at 929 ( emphasis omitted). B ut these q uotations were mislea d i n g. I n each of these c ases, the court being quoted was discussing

an alien who was not at liberty b ecause he was conf ined by border control

. T h e s e c ases d o not establish that w henever

an alien is not free to “g o at larg e within the United Sta t es,” he is under “o ff

icial restraint” as that term is used in immig ration law. Lombera-V a l d o v i n o s ’ s f a i l u re to appreciate that d istinction makes clear th a t althoug h o ur § 1 325 a nd § 1326 cases initiall y b orrowed the concept of “ official restrain t ” from the immig ration contex t, we h a ve n ow wrenched it from that contex t entirely

. W ith each succeeding step, culminating in Lomber a

- Valdovinos
, we have g otten further away

from what § 1326 plausibly means.

F inally
, the Lombera-Valdovinos majority sug g ested that

an alien who presents himself to the authorities at the border wanting to g o to jail likely perceive s n o d i fference b etween being in the c ustody o f border a u thorities and being in the custody of “some o ther United States jailer,” g iven that he is almost certainly unfamiliar with the d octrine of “ official restraint .” Id. at 930 n.2. Hence, the majority arg ued, such

an alien cannot possess the intent required f o r attempted illeg al reentry because h e does not “intend[ ] t o avoid o r chang e” his status of being subject to official restraint. Id. at 930. B ut the initial premise of this arg umen t i s f l awed. An alien who a

pproaches a port of entry and say s he wants to g o to jail does not want to stay detained at the border forever; he

o f f icials” w o rk in g at th e b o rd er an d b ord er p atro l ag en ts, b u t it su rely d oes

n o t m ak e sen se to d o so n o w

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

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G U E T A -R O S A L E S 43

wishes to g o to a prison in the interior and become “part o f the U nited States population, albeit that part of the population which is incarcerated.” Id. at 931 (Ry mer, J
., dissenting )

. B y asking to g o to jail, he d emonstrates that he does not perceive the two forms of custody t o be the same. See id. at 932–33 (“L ombera-Valdovinos’s ar t i c u lated purpose was to g o to a

r e a l j ail, not to stay in the constructive custody o f immig rat i o n officials a t the border or its functional equivalent.”).

I n short, none o f Lombera-V a l d ovinos ’s arg uments for construing “official restraint” in the way that it did stands up t o s crutiny

. The case was wrong ly decided, and were it not binding on this panel, Iwould not follow it.

I I I

Lombera-Valdovinos a ssured us that its consequences would be limited, ex plaining that its holding applied only in the “rare set of factual circumstances where there is no evidence of any

thing other than the i n t e n t to be taken into custody .” Id. at 930 n .3 (majori t y o p i n i on). B ut I remain concerned about the decision’s potential ramifications, which this case demonstrates may b e far-reaching

. As the majority opinion here recog niz es, nothing in Lombera-Valdovinos limits that case’s holding to situations in which an a lien w alks directly u p to a border patrol a g ent and asks straig htforwardly
to be escorted to jail. Maj. Op. a t 1 5

– 16. 7 On the contrary ,

7 A n d ev en in th o se cases I w o u l d b e co n c e r n e d

. B o th th e m aj o rity in Lo mb era -Va ld

o vin o s an d th e m aj ority in th is case i g n o re th e p o ss i b ility th at so m e alien s in u n f

o rtu n a t e c ircu m stan ces—lik e A rg u eta- Ro sales—

m ay in d eed elect to co m e in to th e U.S. w ith a sp ecif ic in ten t to resid e inU N I T E D S T A T E S V

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G U E T A -R O S A L E S 44

even an a lien who—like Arg u eta-Rosales—acts in way s that

s t r ong ly sug g est his d e sire to enter the country free f r o m officia l r e s t raint c a

n assert, if he is apprehended, that he
wants to g o to jail an d thereby claim the protection o f Lombera-Valdovinos

.

The majority here helpfully tries to address these potential

concerns by clar ify ing that in a n attempted illeg al reentry
case, “ [ t] he g overnment must prove only that [ the defendant] had a specific intent to e nter the United States free from official re s t r a i n t , not that this was his only purpose.” Maj. Op. a t 16–17. I t p redicts that a d efendant who “actually intend[ s] to snea k into the country , and chang e[ s] his plans only when he [ i] s spotted” w ill b e c o n v i cted of attempted illeg al reentry

. I certainly hope that the majority is r ig ht. B ut

as t h e majority reminds u s, it is the g overnment’s burden in

a § 1326 case to “prove[ ] unlawful intent bey ond a reasonable doubt.” Id. at 1 6. There surely will be some § 1326 cases in which defendants’ dubious c laims that they d e s i r e d to g o to j a i l a re nonetheless plausible enoug h to g ive the jury reasonable doubt of their g uilt, thereby allowing th o s e defendants to “g u t the crime o f attempted reentry by a play on words.” See Lombera-Valdovinos , 429 F .3d at 933 (Ry mer, J
., dissenting )

. This c annot p ossibly be h ow § 1 326 is meant to work.

* * *

Lombera-Valdovinos has left our law stuck in a catch-22 worthy of J oseph Heller: Aliens who cross the border hoping
to enter the United States free o f restraint must be restrained,

U.S. priso n s

. U n d er Lo mb era -Va ld ovin o s , th ey m ay d o so w ith o u t

co n seq u en ce.U N I T E D S T A T E S V

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G U E T A -R O S A L E S 45

while a liens who cross hoping to be restrained by the United S t a t e s must be freed. Under the majority ’s reg ime, no o n e g ets what he wan t s , b u t some people g o to jail, while

ev er y o n e else g oes home. This is a strang e state o f affairs indeed. And we could and should have a voided it by holding in Lombera-Valdovinos t h a t the specific intent required for attempted illeg a l r e e n try is the intent to reenter the United States free from restraint by authorities at the border

.

T h e Lombera-Valdovinos panel d idn’t choose that cour s e , so I am c o m p e lled to concur in the judg ment here. B u t I do

so under protest. I would g rant Arg ueta-Rosales his wish a nd allow him to g o to jail.