PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. PETRONA GASPAR-MIGUEL, Defendant - Appellant. No. 19-2020

________________ _________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:18-PO-02441-RB-GBW-1)

________________ _________________ Amanda Skinner, Assistant Federal Public De fender (Stephen P. McCue, Federal Public Defender, with her on the briefs), Office of th e Federal Public Defender for the District of New Mexico, Las Cruces, New Me xico, appearing for Appellant. Dustin C. Segovia, Assistant United States Attorney (John C. Anderson, United States Attorney, with him on the brief), Office of the United Stat es Attorney for the District of New Mexico, Las Cruces, New Mexico, appearing for Appellee.

________________ _________________ Before BRISCOE , KELLY , and BACHARACH , Circuit Judges.

________________ _________________ BRISCOE , Circuit Judge.

________________ _________________ Defendant-Appellant Petrona Gaspar-Mi guel (Gaspar) appeals the district court’s affirmance of her conviction for en tering the United States in violation of 8 U.S.C. § 1325(a)(1). Gaspar contends the district court’s conclusion that she FILED United States Court of Appeals Tenth Circuit 

### January 16, 2020 Christopher M. Wolpert Clerk of Court2 “entered” the United States even though she was under the constant surveillance of a border patrol agent is contrary to es tablished law defini ng “entry.” Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reject Gaspar’s c onstant surveillance argument and affirm the judgmen t of the district court. I Neither party disputes the relevant facts. See Aplt.’s Br. at 16; Aple.’s Br. at 10. A border patrol agent monitoring the bor der observed a group of people, of whom Gaspar was one, cross the border from Mexi co into the United States by walking around a 15-foot high fence. ROA II at 16-17, 19, 20-22, 34. The agent radioed for assistance, and continued to observe the gr oup as they proceeded further into the United States. Id. The agent watched the group with binoculars continuously from the time of their crossing until they we re apprehended by other agents. Id. at 21–23. However, he could not make out any details of the indi viduals, even to determine how many there were. Gaspar was charged with ill egal entry without inspection, in violation of 8 U.S.C. § 1325(a). Section 1325(a)(1) provide s for criminal punishment of “any alien who (1) enters or attempts to enter th e United States at any time or place other than as designated by immigration o fficers . . .” 8 U.S.C. § 1325(a)(1) (emphasis added). A motion hearing and bench trial were he ld before a magistrate judge, who found Gaspar guilty on the theory that she had, in fact, “entered” the United States. Gaspar appealed to the district court and argued her conviction should be overturned because “she did not ‘enter’ the United States with in the meaning of § 1325(a) because she3 was under official restraint [t hrough constant surveillance] from the time of her entry until her arrest.” ROA I at 35. The district court found that the word “en ters” in the immigration context has a long history of requiring not just physical presence in th e country, but also freedom from official restraint. But the district court declined to hold that continuous surveillance constituted offici al restraint and found ther e was sufficien t evidence to convict Gaspar of violati ng 8 U.S.C. § 1325(a)(1). II The concept of “freedom fro m official restraint” as a requirement for “entry” in immigration law began in the civil cont ext, as part of the distinction between excludable and deportable alie ns. ROA Vol. I at 212–218; see also United States v. Argueta-Rosales , 819 F.3d 1149, 1162–63 (9th Cir. 2016) (Bybee, J., concurring in the judgment only). Excludable aliens, turned away at the border, received few due process protections; in cont rast, deportable aliens, beca use they could “move freely within the country and mix with the general population,” had greater procedural and substantive rights because the Due Process Clause applies to all “persons” within the United States. Id. In order to align the rights of aliens who had technically crossed the border but were not free to move within the general population with the right s of those aliens turned away at the border, courts created the doctrine of freedom from official restraint. Id. The doctrine is based on the legal fiction that an entry is not accomplished until the alien is free from official restraint and can move freely within4 the country. Id. While the doctrine was mo re typically discussed in the civil context, some courts applied it in criminal cases as well. See, e.g ., United States v. Vasilatos , 209 F.2d 195, 19 7 (3d Cir. 1954 1 ) (holding, in the criminal context, that the court would not “disturb” the official restraint theory of entry). In 1952, Congress enacted the Immigration and Nationa lity Act (INA). Pub. L. No. 82–414, 66 Stat. 163 (June 27, 1952). The INA consolid ated statutory authority over a wide range of immigration issues an d laid out a broad definition of the term “entry.” Id. at 163–67. However, even after th e passage of the INA with entry’s broad definition, courts continued to treat “freedom fr om official restraint” as a necessary component of “entry.” See, e.g ., United States v. Oscar , 496 F.2d 492, 493–94 (9th Cir. 1974); see also United States v. Kavazanjian , 623 F.2d 730, 736, 739 (1st Cir. 1980). In 1996, Congress eliminated the defini tion of the term “entry” from the INA, in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Pub. L. No. 104-208, 110 Stat. 3009 (1996). Now, for purposes of determining what level of due process rights to apply to an alien found within the United States, the relevant distinction has changed. Rather than distinguishing between aliens who are excludable or aliens who ar e deportable, the line is drawn between aliens who are lawfully admitted and those who are not. See 8 U.S.C. § 1101(13)(A). However, the

1 Although enacted by the time Vasilatos was decided, the Immigration and Nationality Act was not in effect wh en the alleged crime occurred.5 INA still makes numerous refe rences to “entry,” including in the new definition of “admission” itself. Id. When interpreting “entry,” we must acknowledge Congress is using a term with a settled meaning. And, if the statut e at issue does not dictate otherwise, we must infer that Congress meant to inco rporate the term’s settled meaning. See Neder v. United States , 527 U.S. 1, 21–22 (1999); see also Sekhar v. United States , 570 U.S. 729, 733 (2013). Abiding by this same princi ple, courts and the Board of Immigration Appeals (BIA) have continued to interpret “enter,” in a variety of contexts, as only completed once an individual is “ free from official restraint.” See, e.g ., Lopez v. Sessions , 851 F.3d 626, 631 (6th Cir. 2017) (“to ‘enter’ the country under this criminal statute [§ 1326(a)], as under entry for special rule cancellation purposes, the individual must be free fro m official restraint”); United States v. Macias , 740 F.3d 96, 100 (2d Cir. 2014) (noti ng that, because of the offici al restraint present, law enforcement’s treatment of the defendant would not have resulted in “entry” under § 1326); United States v. Laville , 480 F.3d 187, 198 (3d Cir. 2007) (McKee, J., concurring) (noting that entr y requires freedom from restraint in order to sustain a conviction under both §§ 1325 and 1326); and In re Martinez-Serrano , 25 I. & N. Dec. 151, 153 (BIA 2009) (ide ntifying “freedom from offici al restraint” as the third requirement of “entry” under “our precedent decisions”). III For purposes of this app eal, we need not address the broader question of whether “entry” under § 1325(a) requires freedom from official restraint. We6 conclude, as pertinent here, that continu ous surveillance by border patrol agents, by itself, does not constitute official restraint. First, the term “official restraint” is not found in § 1325. Thus, we need not accept, as we might with “enter,” that Congr ess is employing a te rm with a settled meaning, because Congress ha s not used that term. Second, the notion that continuous surv eillance alone can amount to official restraint has only recently been applied in the criminal cont ext, where we note several references to the c oncept in Ninth Circuit cases. See United States v. Pacheco-Medina , 212 F.3d 1162, 1166 (9th Cir. 2000) (citing In re Pierre , 14 I. & N. Dec. 467 (BIA 1973)); see also United States v. Gonzalez-Torres , 309 F.3d 594, 597 (9th Cir. 2002) (holding, under very simila r facts, that continu ous surveillance of a group entering meant the defendant was never free from official restraint and overturning the defendant’s conviction under § 1325) and United States v. RuizLopez , 234 F.3d 445, 449 (9th Cir. 2000). Third, practical and policy concerns support our treating continuous surveillance differently from ot her forms of official restraint. From a common-sense viewpoint, that continuous surveillance could be thought of as “res traint” is illogical. If the alien does not know that he is under surv eillance, it is difficult to perceive how that surveillance can be said to have prevented that al ien from moving “at large and at will within the United States.” Cf. In re Pierre , 14 I. & N. Dec. at 469 (citing Chow Chok , 161 Fed. 630); accord Pacheco-Medina , 212 F.3d at 1164. Additionally, as seen in the Ninth Circuit case law, parsing what shou ld or should not qualify as7 “surveillance” and how continuou s it must be can le ad to distinctions so fine as to become meaningless, if not arbitrary. See United States v. Cruz-Escoto , 476 F.3d 1081, 1087 (9th Cir. 2007) (holding the defendant free from official restraint, because he was not observed at a ll times after crossing the border); United States v. Vela-Robles , 397 F.3d 786, 789 (9th Cir. 2005) ( holding that triggering a seismic sensor is not surveillance for pur poses of official restraint); United States v. Hernandez-Herrera , 273 F.3d 1213, 1218–19 (9th Cir. 2001) (holding that “persistent tracking” is not official restraint); see also Argueta-Rosales , 819 F.3d at 1162–63 (Bybee, J. concurring in the judgme nt only) (“our underst anding of when an alien is ‘free from offici al restraint’ has reached an absurd position”). As a general matter, treati ng continuous surveillance as official restraint in turn treats aliens who take exactly the same actions with exactly the same intent as committing different versi ons of a crime: attempte d entry, versus entry. See also ROA Vol. I at 225, 227 (“[w]hen police set up sting operations to catch car thieves, clandestinely surveilling th e ‘bait car’ throughout the operation, an individual who successfully steals the bait car is not somehow innocent of the crime simply because law enforcement watched the entire sequence of events unfold”). Further, depending on the exact contours of “continuous surve illance,” there is al so the potential for perverse incentives for la w enforcement agents to “look away” to avoid the application of “conti nuous surveillance.” We conclude that even if we assume, arguendo , that “entry” under § 1325(a)(1) requires freedom from official restraint, continuous surveillance by8 itself does not constitute offici al restraint. The judgment of the district court is AFFIRMED.

Entered for the Court
Mary Beck Briscoe Circuit Judge