FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 03-10691

v. D.C. No.  CR-03-00177-CKJ JUAN ANTONIO VELA-ROBLES, aka

Antonio Juan Vela, Sr., OPINION

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Submitted December 7, 2004*

San Francisco, California

Filed February 7, 2005

Before: Dorothy W. Nelson, Andrew J. Kleinfeld, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

1577
COUNSEL

Peter A. Matiatos, Tucson, Arizona, for the appellant. 

Paul K. Charlton, United States Attorney, District of Arizona,

Christina M. Cabanillas, Deputy Appellate Chief, and Nathan

D. Leonardo, Assistant United States Attorney, Tucson, Arizona, for the appellee. 

OPINION

GOULD, Circuit Judge: 

Juan Antonio Vela-Robles appeals his conviction for illegal

reentry after deportation, in violation of 8 U.S.C. § 1326.

Vela-Robles contends that the district court erred in denying,

for lack of a factual basis, his requested jury instruction on the

need for freedom from official restraint to support a finding

UNITED STATES v. VELA-ROBLES 1579
of illegal reentry. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

I

On December 30, 2002, United States Border Patrol Agent

Chris Ofeciar received a message from a seismic sensor

located within Jackson Canyon, Arizona (about ten to fifteen

feet north of the Mexican border) that the sensor had been

activated. Ofeciar was not sure what had triggered the sensor

because seismic sensors respond to the movement of animals,

people, or vehicles, or even may be set off by the weather. 

Agents Ofeciar and Rene Ortiz responded to the sensor,

arriving in the Jackson Canyon area an estimated ten minutes

after being notified. Shortly thereafter, Ofeciar and Ortiz

encountered Vela-Robles about three-quarters to one mile

north of the border. 

Vela-Robles admitted that he was born in Mexico, that he

was not legally within the United States, and that he had been

deported in 1999, but had crossed back into the United States

through a hole in the international boundary fence. VelaRobles was later indicted on one count of illegal reentry after

deportation, in violation of 8 U.S.C. § 1326. 

During trial, Vela-Robles requested a jury instruction

regarding “official restraint,” to support a theory of the case

that he had not “entered” the United States.1 The government

1Vela-Robles contended at trial that he was not guilty of illegal reentry,

but rather that he was guilty of attempted illegal reentry because he was

under constant governmental observation. He requested the following jury

instruction: 

Physical presence on United States soil is not enough to prove

that an alien entered or was found in the United States. Enter or

found in means more than the mere act of crossing the border

line. Before an alien can be said to have entered or be found in

1580 UNITED STATES v. VELA-ROBLES
objected to the instruction on grounds that it was unsupported

by the evidence and that it would unnecessarily confuse the

jury. The district court denied the requested instruction,

observing that there was no case law holding that sensor activation constituted observation, and that the instruction was

not supported by the facts. The jury gave its verdict finding

Vela-Robles guilty of one count of illegal reentry and the district court sentenced him to forty-six months in prison. This

appeal followed, challenging the district court’s refusal to

give the requested jury instruction on “official restraint.” 

II

Vela-Robles contends that the district court abused its discretion when it refused to give his proffered jury instruction

because, he argues, there was evidence that he was under official restraint from the moment he triggered the seismic sensor

at the entrance of Jackson Canyon until his apprehension by

Agents Ofeciar and Ortiz.2

[1] Our circuit law establishes the rule that a person does

not commit an unlawful entry into the United States if he or

she was “under constant observation by governmental authorities” from the time of physical entry until the time of arrest.

United States v. Castellanos-Garcia, 270 F.3d 773, 775 (9th

Cir. 2001); see also United States v. Oscar, 496 F.2d 492,

493-94 (9th Cir. 1974) (holding that an entry has not been

accomplished until physical presence is accompanied by freethe United States, he or she must be free from official restraint.

The restraint may take the form of surveillance, unbeknownst to

the alien. In order to enter or be found in the United States the

alien must achieve the freedom to go at large and mix with the

population. 

2We review for an abuse of discretion the district court’s finding that

there is an insufficient factual foundation to support a proffered jury

instruction. United States v. Castellanos-Garcia, 270 F.3d 773, 775 (9th

Cir. 2001). 

UNITED STATES v. VELA-ROBLES 1581
dom from official restraint). The rule reflects the policy of the

law criminalizing illegal entry: The law seeks to prevent from

entering those who “come to stay permanently, or for a period

of time, or to go at large and at will within the United States.”

United States v. Pacheco-Medina, 212 F.3d 1162, 1164 (9th

Cir. 2000) (quoting Ex parte Chow Chok, 161 F. 627, 630

(C.C.N.D.N.Y. 1908), aff’d, 163 F. 1021 (2d Cir. 1908)). Yet

those who are under constant governmental observation or

surveillance are “in the government’s constructive custody”

for the entire time they are present, and this “official restraint”

precludes a finding of entry. United States v. Aguilar, 883

F.2d 662, 683 (9th Cir. 1989), superseded by 8 U.S.C. § 1324

(2000 & Supp. I 2004) (“The [official restraint] doctrine is

premised on the theory that the alien is in the government’s

constructive custody at the time of physical entry. By contrast, when an alien is able to exercise his free will subsequent

to physical entry, he is not under official restraint.”); see also

Castellanos-Garcia, 270 F.3d at 775 (holding that if a person

is “under constant observation or surveillance from the

moment of his entry to the time of his capture, he is not free

from official restraint”); Pacheco-Medina, 212 F.3d at 1163-

64 (holding that “physical presence is not enough” to constitute an entry; the person must at some time while present also

be free from official restraint).3

Vela-Robles argues that he was under constant surveillance

because Jackson Canyon is a natural gorge and there are only

two practical ways out: the entrance at the U.S.-Mexican border where Vela-Robles crossed over, and the exit about one

mile north of the border. Vela-Robles suggests that once he

3Other circuits have established a similar doctrine. See, e.g., Nyirenda

v. INS, 279 F.3d 620, 623-25 (8th Cir. 2002); Farquharson v. U.S. Attorney General, 246 F.3d 1317, 1321-22 (11th Cir. 2001); Correa v. Thornburgh, 901 F.2d 1166, 1171-72 (2d Cir. 1990) (“ ‘Freedom from official

restraint’ means that the alien who is attempting entry is no longer under

constraint emanating from the government that would otherwise prevent

her from physically passing on.”). None of the federal circuits have

adopted a contrary rule. 

1582 UNITED STATES v. VELA-ROBLES
triggered the seismic sensor, he was under constant observation or surveillance because Border Patrol agents knew he

was in the canyon. The issue that we must decide is whether

Vela-Robles was under official restraint within the meaning

of our case law, so as to prohibit a conclusion that he had

unlawfully entered the United States. This turns on whether

a person who triggers a seismic sensor, at least in the circumstances presented, may be considered by law to be under

constant observation or surveillance. 

[2] We see little in reason or analysis that could support the

argument urged by Vela-Robles. Detection by a seismic sensor does not amount to observation or surveillance for the purpose of showing official restraint; in light of the rule’s

purpose, an alien must be “in the visual or physical grasp of

the authorities at all times” to show that he or she is under

official restraint. See Pacheco-Medina, 212 F.3d at 1165. It

would not be appropriate to extend the doctrine to encompass

a case such as this, involving the mere triggering of seismic

sensors, absent constant visual observation. Vela-Robles was

not subject to official restraint before his arrest because he

was not in the constant visual or physical grasp of governmental authorities after he crossed the border. Vela-Robles

undisputedly traveled at least a half of a mile north of the border before Agents Ofeciar and Ortiz detected his presence.

See Castellanos-Garcia, 270 F.3d at 774-76 (holding that the

evidence did not support an “official restraint” theory where

no agent saw the defendant cross the border, and the defendant was found 100 yards north of the U.S.-Mexican border).

Because the reasons for the rule that official restraint precludes a conclusion of illegal entry, despite physical presence,

are not applicable, we decline to extend the scope of the rule

to cover a person who has merely tripped a seismic sensor and

who may have difficulty escaping. 

III

[3] A district court is not required to give an instruction on

a defendant’s official restraint theory when there is no eviUNITED STATES v. VELA-ROBLES 1583
dence to support the theory. Id. at 777. We hold that the district court did not abuse its discretion in determining that there

was an insufficient factual basis for Vela-Robles’s requested

instruction because Vela-Robles presented no evidence showing that he was under constant observation or surveillance by

government officials from the moment he crossed the border

until he was apprehended. 

AFFIRMED.

1584 UNITED STATES v. VELA-ROBLES