United States v. Oracio Corrales-Vazquez , 931 F.3d 944 ( 2019 )


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  •                   FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                No. 18-50206
    Plaintiff-Appellee,
    D.C. No.
    v.                   3:18-mj-03051-GPC-1
    ORACIO CORRALES-VAZQUEZ,
    Defendant-Appellant.               OPINION
    Appeal from the United States District Court
    for the Southern District of California
    Gonzalo P. Curiel, District Judge, Presiding
    Argued and Submitted June 12, 2019
    Pasadena, California
    Filed July 24, 2019
    Before: Ferdinand F. Fernandez, Kim McLane Wardlaw,
    and Jay S. Bybee, Circuit Judges.
    Opinion by Judge Bybee;
    Concurrence by Judge Bybee;
    Dissent by Judge Fernandez
    2           UNITED STATES V. CORRALES-VAZQUEZ
    SUMMARY*
    Criminal Law
    The panel reversed a misdemeanor conviction for eluding
    examination or inspection by immigration officers in
    violation of 18 U.S.C. § 1325(a)(2).
    The panel held that an alien who crosses into the country
    at a non-designated time or place is not guilty under
    § 1325(a)(2). Rather, to convict a defendant under
    § 1325(a)(2), the government must prove that the alien’s
    criminal conduct occurred at a time and place designated for
    “examination or inspection by immigration officers”—i.e., at
    a port of entry open for inspection. Because the government
    failed to make that showing, the panel reversed the
    conviction.
    Concurring, Judge Bybee wrote separately to note his
    sympathy for the government’s position, considering the
    difficulty caused by the court’s jurisprudence regarding
    § 1325(a)(1), which makes it a crime for an alien to enter the
    United States outside an open port of entry.
    Dissenting, Judge Fernandez wrote that he would affirm
    because the elements of § 1325(a)(2) are that the accused was
    an alien and that he knowingly eluded examination or
    inspection by an immigration officer, and there is no
    requirement that the accused either eluded inspection at a port
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. CORRALES-VAZQUEZ                  3
    of entry, or, at least, eluded inspection by an immigration
    officer at the moment he entered the United States.
    COUNSEL
    Doug Keller (argued), Federal Defenders of San Diego Inc.,
    San Diego, California, for Defendant-Appellant.
    D. Benjamin Holley (argued), Assistant United States
    Attorney; Helen H. Hong, Chief, Appellate Division; Robert
    S. Brewer Jr., United States Attorney; United States
    Attorney’s Office, San Diego, California; for Plaintiff-
    Appellee.
    OPINION
    BYBEE, Circuit Judge:
    Federal law makes it a crime for “[a]ny alien” to “enter[]
    or attempt[] to enter the United States at any time or place
    other than as designated by immigration officers,” 8 U.S.C.
    § 1325(a)(1), or to “elude[] examination or inspection by
    immigration officers,” 
    id. § 1325(a)(2).
    In this case, we
    consider whether an alien who crosses into the country at a
    non-designated time or place is guilty of “elud[ing]
    examination or inspection by immigration officers” under
    § 1325(a)(2). We hold that the answer is no. To convict a
    defendant under § 1325(a)(2), the government must prove
    that the alien’s criminal conduct occurred at a time and place
    designated for “examination or inspection by immigration
    officers”—i.e., at a port of entry that is open for inspection.
    4           UNITED STATES V. CORRALES-VAZQUEZ
    Because the government failed to make that showing in this
    case, we reverse.
    I
    Oracio Corrales-Vazquez is a native and citizen of
    Mexico who does not have authorization to enter the United
    States. In June 2018, he crossed into the United States from
    Mexico approximately 20 miles east of the port of entry at
    Tecate, California. Several hours after Corrales crossed into
    the country, a border patrol officer found him along with
    three other individuals hiding in some brush approximately
    four miles north of the international border. Corrales
    admitted to the officer that he was not authorized to be in the
    United States. He was arrested and charged with “elud[ing]
    examination or inspection by immigration officers,” in
    violation of 8 U.S.C. § 1325(a)(2).
    The district court held a bench trial, during which
    Corrales argued that an alien eludes examination or
    inspection under § 1325(a)(2) only by crossing into the
    country at a port of entry, a fact that the government failed to
    prove in his case.1 If an alien could violate § 1325(a)(2) by
    simply crossing into the United States without examination or
    inspection, Corrales argued, then § 1325(a)(1)—which
    specifically prohibits entering or attempting to enter the
    United States at a non-designated time or place—“would be
    superfluous.”
    1
    Notably, Corrales did not dispute in the district court that an alien
    who enters the United States between ports of entry without authorization
    would violate § 1325(a)(1). Corrales was charged, however, with
    violating only § 1325(a)(2).
    UNITED STATES V. CORRALES-VAZQUEZ                  5
    The district court disagreed with Corrales’s interpretation
    of § 1325(a)(2), concluding that an alien “eludes examination
    or inspection” by crossing into the United States “without
    submitting to” an examination or inspection.              After
    determining that Corrales crossed into the United States
    without undergoing an examination or inspection, the court
    found Corrales guilty of violating § 1325(a)(2) and sentenced
    him to time served. He now appeals his conviction.
    II
    On appeal, Corrales renews his argument that the
    government failed to adduce sufficient evidence to prove that
    he “elude[d] examination or inspection by immigration
    officers” in violation of § 1325(a)(2). “We review challenges
    to the sufficiency of evidence, including questions of
    statutory interpretation, de novo.” United States v. Aldana,
    
    878 F.3d 877
    , 880 (9th Cir. 2017), cert. denied, 
    139 S. Ct. 157
    (2018).
    III
    Section 1325(a) provides in full:
    Any alien who (1) enters or attempts to enter
    the United States at any time or place other
    than as designated by immigration officers, or
    (2) eludes examination or inspection by
    immigration officers, or (3) attempts to enter
    or obtains entry to the United States by a
    willfully false or misleading representation or
    the willful concealment of a material fact,
    shall, for the first commission of any such
    offense, be fined under Title 18 or imprisoned
    6           UNITED STATES V. CORRALES-VAZQUEZ
    not more than 6 months, or both, and, for a
    subsequent commission of any such offense,
    be fined under Title 18, or imprisoned not
    more than 2 years, or both.
    Congress first enacted a version of this provision in 1952
    as part of the Immigration and Nationality Act (INA), Pub. L.
    No. 82-414, § 275, 66 Stat. 163, 229. But its origins date
    back much farther. Beginning in the early twentieth century,
    our immigration laws required deportation for certain aliens
    who entered the United States “at any time or place other than
    as designated by immigration officials, . . . or who enter[ed]
    without inspection.” Immigration Act of 1917, Pub. L. No.
    64-301, § 19, 39 Stat. 874, 889.2 In 1929, Congress decided
    that aliens who “enter the United States surreptitiously”
    should be subject to not only deportation but also criminal
    penalties, H.R. Rep. No. 70-2418, at 7–8 (1929), and revised
    the prohibitions in the 1917 statute to be “broad enough to
    cover entry in any manner,” 
    id. at 4.
    The new criminal statute
    thus made it a misdemeanor for any alien to “enter[] the
    United States at any time or place other than as designated by
    immigration officials or elude[] examination or inspection by
    immigration officials, or obtain[] entry to the United States
    by a willfully false or misleading representation or the willful
    concealment of a material fact.” Act of Mar. 4, 1929, Pub. L.
    No. 70-1018, § 2, 45 Stat. 1551, 1551 (codified at 8 U.S.C.
    § 180a (Supp. III 1929)). Congress replicated the 1929
    2
    See also Act of Mar. 3, 1891, ch. 551, § 8, 26 Stat. 1084, 1085–86
    (criminalizing the act of “knowingly or negligently land[ing] or
    permit[ting] to land any alien immigrant at any place or time other than
    that designated by the inspection officers”); Act of Mar. 3, 1903, ch. 1012,
    § 18, 32 Stat. 1213, 1217–18 (same); Act of Feb. 20, 1907, ch. 1134, § 18,
    34 Stat. 898, 904 (same).
    UNITED STATES V. CORRALES-VAZQUEZ                           7
    statute’s three substantive prohibitions with minimal
    alteration in 1952 in the INA, and in 1990 added liability for
    “attempt[ing] to enter” under § 1325(a)(1) and § 1325(a)(3).
    See Immigration Act of 1990, Pub. L. No. 101-649,
    § 543(b)(2), 104 Stat. 4978, 5059.
    We are concerned here with what it means for an alien to
    “elude[] examination or inspection by immigration officers”
    under § 1325(a)(2).3 In the government’s view, any alien
    who crosses into the United States without examination or
    inspection necessarily “eludes examination or inspection,”
    even if the alien crosses miles away from any place where
    those processes occur. Corrales, by contrast, contends that
    the conduct criminalized by § 1325(a)(2) can occur only at
    places and times designated for examination or inspection by
    immigration officers. Taking into account the statutory text
    and context, we reject the government’s reading of
    § 1325(a)(2) and hold that the crime of “elud[ing]
    examination or inspection by immigration officers” can be
    committed only where and when examinations or inspections
    take place—at open ports of entry.
    A
    “We begin, as usual, with the statutory text.” Maslenjak
    v. United States, 
    137 S. Ct. 1918
    , 1924 (2017). And because
    the relevant phrase—“eludes examination or inspection by
    immigration officers,” 8 U.S.C. § 1325(a)(2)—“has remained
    unchanged” since it was first used in 1929, it “presumptively
    3
    The term “examination” in this provision refers to medical
    examinations, see 8 U.S.C. § 1222(b), while “inspection” refers to
    background screening, searches, and other prerequisites for admission, see
    
    id. § 1225(a)(3),
    (d).
    8           UNITED STATES V. CORRALES-VAZQUEZ
    retains its original meaning,” Whitfield v. United States,
    
    135 S. Ct. 785
    , 788 (2015).
    The processes referenced in § 1325(a)(2)—“examination
    or inspection by immigration officers”—occur, as they
    always have, at “designated ports of entry” that are “staffed
    by immigration officials” and “open for inspection.” 
    Aldana, 878 F.3d at 882
    (citing 8 C.F.R. § 235.1(a)); see Ngim Ah Oy
    v. Haff, 
    112 F.2d 607
    , 608 (9th Cir. 1940); Kaneda v. United
    States, 
    278 F. 694
    , 696–97 (9th Cir. 1922).4 And as a literal
    matter, entering the United States without examination or
    inspection, regardless of where or how, could be described as
    “elud[ing]” those processes if, as the government urges, the
    word “elude” is defined broadly to mean “evade compliance
    with or fulfilment of” an obligation, 3 Oxford English
    Dictionary 97 (1st ed. 1933) (“OED First”). Several
    4
    To be sure, under the INA, an immigration inspection can
    technically occur anywhere along the border and at any time, because any
    alien “who arrives in the United States”—“whether or not at a designated
    port of arrival”—is “deemed . . . an applicant for admission,” 8 U.S.C.
    § 1225(a)(1), and all “applicants for admission . . . shall be inspected by
    immigration officers,” 
    id. § 1225(a)(3).
    This means that the border patrol
    agent who discovered Corrales technically performed an “inspection” at
    the time he was found. But we have interpreted “[t]he language in
    [§ 1325(a)(2)]” to refer to the “immigration procedures conducted . . . at
    the time of entry, a fixed point in time.” United States v. Rincon-Jimenez,
    
    595 F.2d 1192
    , 1193 (9th Cir. 1979); see also 8 C.F.R. § 235.1(a)
    (“Application to lawfully enter the United States shall be made in person
    to an immigration officer at a U.S. port-of-entry when the port is open for
    inspection . . . .”). As a result, inspections occurring after that fixed point
    in time would not fall within the “inspection” contemplated in
    § 1325(a)(2). Indeed, were it otherwise, then no alien who is ultimately
    found and inspected by an immigration officer—even hours or perhaps
    days after the alien crossed into the United States—could be said to have
    “elude[d]” inspection. See United States v. Oscar, 
    496 F.2d 492
    , 494 (9th
    Cir. 1974).
    UNITED STATES V. CORRALES-VAZQUEZ                               9
    considerations, however, lead us to reject that expansive
    interpretation.
    To begin with, not every “word in a statute . . . extend[s]
    to the outer limits of its definitional possibilities,” and the
    government’s interpretation of the word “eludes” “sits
    uncomfortably with common usage.” Abuelhawa v. United
    States, 
    556 U.S. 816
    , 820 (2009) (quoting Dolan v. U.S.
    Postal Serv., 
    546 U.S. 481
    , 486 (2006)). In 1929, as today,
    the verb “elude” was more commonly used to mean “avoid
    slyly, by artifice, stratagem, or dexterity,” or “escape from in
    a covert manner.” Webster’s New International Dictionary
    713 (1st ed. 1930); see also, e.g., Concise Oxford Dictionary
    of Current English 368 (2d ed. 1929) (“[e]scape adroitly
    from”); 3 OED First 97 (“escape by dexterity or stratagem,”
    or “slip away from, escape adroitly from”); Webster’s New
    Collegiate Dictionary 267 (6th ed. 1951) (“avoid adroitly, as
    by artifice; evade,” or “escape the notice of”); Webster’s New
    World College Dictionary 455 (2d ed. 1970) (“avoid or
    escape from by quickness, cunning, etc.,” or “escape
    detection, notice, or understanding by”); Webster’s Third
    New International Dictionary 738 (2002) (“avoid slyly or
    adroitly,” or “escape the notice or perception of”). To
    “elude” something would not usually mean to simply avoid
    it—the avoidance generally contemplates some form of
    “escape,” whether through “quickness [or] cunning[ness].”
    United States v. Oscar, 
    496 F.2d 492
    , 494 (9th Cir. 1974)
    (citation omitted).5 For example, “in the case of five seamen
    5
    Indeed, had Congress wanted to use a broader verb such as “avoid,”
    it easily could have done so, as it did in other immigration-related statutes.
    See, e.g., 18 U.S.C. § 139 (1926) (repealed 1940) (imposing criminal
    penalties on any admitted citizen who “knowingly den[ies] that he has
    been so admitted, with the intent to evade or avoid any duty or liability
    10          UNITED STATES V. CORRALES-VAZQUEZ
    who were not produced for inspection upon arrival” of a ship,
    one might say that the men “managed to elude the guards
    stationed in and about the vessel” by escaping the ship
    without the guards’ detection. The Tuscania, 
    42 F.2d 168
    ,
    169 (2d Cir. 1930) (emphasis added). But it would have been
    quite odd to say that the men “eluded” the guards if the men
    had avoided the port altogether and instead traveled by
    airplane. To elude, in other words, generally contemplates a
    risk of exposure to, and subsequent escape from, the object
    being eluded. Applying that narrower definition here, an
    alien “eludes examination or inspection” only if the alien’s
    conduct occurs at a time and place where the alien is at risk
    of undergoing those processes in the first place. Because
    those processes occur at open and operating ports of entry,
    the alien’s criminal conduct—the “elud[ing]”—must occur
    there as well. This would include, for example, an alien who
    hides in the trunk of a vehicle passing through a port of entry,
    or an alien who crosses through a port of entry on foot and
    then sneaks by the officers conducting inspections or
    examinations. But it would not include an alien who crosses
    the border miles away from any place where those processes
    occur.
    More importantly, even if the government’s broader
    interpretation of the phrase “eludes examination or
    inspection” might be plausible in isolation, “statutes are not
    imposed or required by law” (emphasis added)). Or Congress could have
    replicated the language already in use in the predecessor to § 1325(a),
    which prohibited “enter[ing] without inspection.” 39 Stat. at 889.
    Congress’s decision not to use either of these “ready alternative[s]” in
    § 1325(a)(2) “indicates that Congress did not in fact want” this particular
    provision of the statute to be as broad as the government claims. Advocate
    Health Care Network v. Stapleton, 
    137 S. Ct. 1652
    , 1659 (2017) (citing
    Lozano v. Montoya Alvarez, 
    572 U.S. 1
    , 16 (2014)).
    UNITED STATES V. CORRALES-VAZQUEZ                 11
    read as a collection of isolated phrases.” 
    Abuelhawa, 556 U.S. at 819
    . “It is a fundamental canon of statutory
    construction that the words of a statute must be read in their
    context and with a view to their place in the overall statutory
    scheme.” Sturgeon v. Frost, 
    136 S. Ct. 1061
    , 1070 (2016)
    (quoting Roberts v. Sea-Land Servs., Inc., 
    566 U.S. 93
    , 101
    (2012)). And in this case, “statutory context compels a more
    circumscribed reading.” McDonnell v. United States, 136 S.
    Ct. 2355, 2367 (2016).
    When § 1325(a) is read as a whole, the “overall statutory
    scheme,” 
    Sturgeon, 136 S. Ct. at 1070
    (citation
    omitted)—and § 1325(a)(2)’s place within it—becomes
    evident.     As described above, § 1325(a)(2) follows
    § 1325(a)(1), which separately makes it a crime to “enter[] or
    attempt[] to enter the United States at any time or place other
    than as designated by immigration officers.”               And
    § 1325(a)(2) precedes § 1325(a)(3), which makes it a crime
    to enter or attempt to enter the United States “by a willfully
    false or misleading representation or the willful concealment
    of a material fact.” Considered together, these three
    provisions—which carry identical criminal penalties—are
    “broad enough to cover entry in any manner.” H.R. Rep. No.
    70-2418, at 4. Section 1325(a)(1) covers aliens who enter or
    attempt to enter outside of an open port of entry. See 
    Aldana, 878 F.3d at 882
    . Section 1325(a)(2) covers aliens who cross
    through an open port of entry, but elude examination or
    inspection in doing so. And § 1325(a)(3) covers aliens who
    cross through an open port of entry and submit to
    examination and inspection, but obtain entry (or attempt to
    obtain entry) through willful misrepresentation or
    concealment. The statute works as a seamless whole.
    12          UNITED STATES V. CORRALES-VAZQUEZ
    The government’s reading of the statute disrupts its
    careful structure. If, as the government argues, merely
    crossing into the United States without examination or
    inspection violates § 1325(a)(2), regardless of time or place,
    then much of the highly specific language in § 1325(a)(1)
    would be superfluous—any alien who “enters . . . the United
    States at any [non-designated] time or place” under
    § 1325(a)(1) would also be guilty of “elud[ing] examination
    or inspection” under § 1325(a)(2). The government’s
    interpretation thus violates “the ‘cardinal principle’ of
    interpretation that courts ‘must give effect, if possible, to
    every clause and word of a statute.’” Loughrin v. United
    States, 
    573 U.S. 351
    , 358 (2014) (quoting Williams v. Taylor,
    
    529 U.S. 362
    , 404 (2000)); see Rubin v. Islamic Republic of
    Iran, 
    138 S. Ct. 816
    , 824 (2018) (“[O]ne of the most basic
    interpretive canons [is] that a statute should be construed so
    that effect is given to all its provisions, so that no part will be
    inoperative or superfluous, void or insignificant.” (internal
    alteration omitted) (quoting Corley v. United States, 
    556 U.S. 303
    , 314 (2009))).6
    Indeed, if § 1325(a)(2) is as broad as the government says
    it is, then at the time of § 1325(a)’s enactment—before
    “attempt[]” was added in 1990, see 104 Stat. at
    5059—§ 1325(a)(1) would have been not only superfluous
    but subsumed entirely within § 1325(a)(2). In other words,
    6
    The dissent argues that we should not “consider the canon that seeks
    to avoid redundancy” because, in its view, § 1325(a)(2) “is not truly
    ambiguous.” Dissent at 27. But as the Supreme Court has explained in
    rejecting this precise argument, ignoring “the antisuperfluousness canon”
    merely “because ‘there is nothing ambiguous about the language’” of a
    particular provision in isolation “violates ‘the cardinal rule that a statute
    is to be read as a whole.’” 
    Corley, 556 U.S. at 314
    n.5 (quoting King v.
    St. Vincent’s Hosp., 
    502 U.S. 215
    , 221 (1991)).
    UNITED STATES V. CORRALES-VAZQUEZ                  13
    every violation of § 1325(a)(1) for entering at a non-
    designated time or place would have also been a violation of
    § 1325(a)(2) for eluding examination or inspection. The
    government’s interpretation therefore also runs afoul of the
    related principle of interpretation “that ‘general language of
    a statutory provision, although broad enough to include it,
    will not be held to apply to a matter specifically dealt with in
    another part of the same enactment.’” Bloate v. United
    States, 
    559 U.S. 196
    , 207–08 (2010) (internal alteration
    omitted) (quoting D. Ginsberg & Sons v. Popkin, 
    285 U.S. 204
    , 208 (1932)); see RadLAX Gateway Hotel, LLC v.
    Amalgamated Bank, 
    566 U.S. 639
    , 645–46 (2012) (explaining
    how the “general/specific canon” acts with the anti-
    surplusage canon to avoid “the superfluity of a specific
    provision that is swallowed by [a] general one”).
    Although neither of these interpretive principles
    establishes “an absolute rule,” they do provide “a strong
    indication of statutory meaning,” especially when, as here,
    “the two [provisions] are interrelated and closely positioned,
    both in fact being parts of the same statutory scheme.”
    
    RadLAX, 566 U.S. at 645
    –46 (internal alteration omitted)
    (quoting HCSC–Laundry v. United States, 
    450 U.S. 1
    , 6
    (1981) (per curiam)). For example, in Maslenjak, the
    Supreme Court rejected an interpretation of a provision
    making it a crime to “procure[], contrary to law,
    naturalization” that would have swept in any person who
    “obtain[s] citizenship without the requisite legal
    
    qualifications.” 137 S. Ct. at 1925
    & n.2 (quoting 18 U.S.C.
    § 1425(a)). The Court observed that such an expansive
    interpretation, although perhaps “plausible” in isolation,
    would have rendered “superfluous” the “highly specific
    language” in an adjoining provision that made it a crime “to
    ‘procure or obtain naturalization’ for ‘[one]self or another
    14        UNITED STATES V. CORRALES-VAZQUEZ
    person not entitled thereto.’” 
    Id. at 1925
    n.2 (alteration in
    original) (quoting 18 U.S.C. § 1425(b)). “Rather than reading
    those words to do no work, in violation of ordinary canons of
    statutory construction,” the Court understood “Congress to
    have defined two separate crimes.” 
    Id. Similar examples
    abound. See, e.g., Marinello v. United States, 
    138 S. Ct. 1101
    , 1106–07 (2018) (rejecting the government’s “literal”
    interpretation of a felony obstruction provision in the Internal
    Revenue Code in part because it would have “render[ed]
    superfluous” the “numerous misdemeanors” in the Code that
    “specifically” dealt with willful violations of certain tax
    requirements (citation omitted)); United States v. Chase,
    
    135 U.S. 255
    , 260 (1890) (declining to interpret the noun
    “writing” in a criminal statute to include mailed letters in
    light of the “separate and distinct clause” in the statute
    “specifically” dealing with letters); United States v.
    Cabaccang, 
    332 F.3d 622
    , 627 (9th Cir. 2003) (en banc)
    (rejecting the government’s interpretation of 21 U.S.C.
    § 952(a) under which “any conduct proscribed by the first
    clause of § 952(a) also would have been covered by the
    statute’s broader second clause when § 952 was enacted in
    1970, rendering the first clause of the statute superfluous”).
    These basic interpretive principles control this case. The
    government concedes that, under its broad interpretation of
    § 1325(a)(2), there is no set of facts that would have been
    criminal under § 1325(a)(1) but not under § 1325(a)(2) at the
    time of the statute’s enactment—any alien who entered at a
    non-designated time or place in violation of § 1325(a)(1)
    would have also eluded examination or inspection in violation
    of § 1325(a)(2). Because § 1325(a)(1) “specifically deal[s]
    with” entry at a non-designated time or place, the broader
    language in § 1325(a)(2) should “not be held to apply to” that
    UNITED STATES V. CORRALES-VAZQUEZ                   15
    same conduct. 
    RadLAX, 566 U.S. at 646
    (quoting D.
    Ginsberg & 
    Sons, 285 U.S. at 208
    ).
    To be sure, § 1325(a)(1) now criminalizes “attempts to
    enter,” while § 1325(a)(2) does not expressly mention
    “attempt.” So § 1325(a)(1), as it exists today, may not be
    totally subsumed within § 1325(a)(2). But “attempt” was not
    added to § 1325(a)(1) until 1990, see 104 Stat. at 5059, and
    “later laws that ‘do not seek to clarify an earlier enacted
    general term’ and ‘do not depend for their effectiveness upon
    clarification, or a change in the meaning of an earlier statute,’
    are ‘beside the point’ in reading the first enactment.”
    Gutierrez v. Ada, 
    528 U.S. 250
    , 257–58 (2000) (quoting
    Almendarez-Torres v. United States, 
    523 U.S. 224
    , 237
    (1998)); cf. New Prime Inc. v. Oliveira, 
    139 S. Ct. 532
    , 539
    (2019) (“It’s a ‘fundamental canon of statutory construction’
    that words generally should be ‘interpreted as taking their
    ordinary meaning at the time Congress enacted the statute.’”
    (citation and internal alterations omitted)). And as the
    Supreme Court has explained, the 1990 amendments to the
    INA—and this section of the amendments in
    particular—were not “intended to change, or to clarify, the
    fundamental relationship” between the INA’s substantive
    provisions. 
    Almendarez-Torres, 523 U.S. at 233
    –34. The
    1990 amendments to § 1325(a)(1) did not expand the scope
    of conduct prohibited by § 1325(a)(2).
    In any event, even under the statute as it exists today, the
    government’s interpretation still runs afoul of “the
    presumption ‘that statutory language is not superfluous,’”
    
    McDonnell, 136 S. Ct. at 2369
    (citation omitted), because the
    actual entry offense in § 1325(a)(1) would serve no role in the
    statute—every alien who “enters . . . the United States at any
    [non-designated] time or place” under § 1325(a)(1) would
    16          UNITED STATES V. CORRALES-VAZQUEZ
    also “elude[] examination or inspection” under § 1325(a)(2).
    Rather than reading the “highly specific language” in
    § 1325(a)(1) “to do no work, in violation of ordinary canons
    of statutory construction, we understand Congress to have
    defined two separate crimes” in § 1325(a)(1) and (2).
    
    Maslenjak, 137 S. Ct. at 1925
    n.2.
    Confirming our understanding is the fact that § 1325(a)(1)
    and § 1325(a)(2) are connected by the word “or,” a term that
    is “almost always disjunctive, that is, the words it connects
    are to be given separate meanings.” 
    Loughrin, 573 U.S. at 357
    (quoting United States v. Woods, 
    571 U.S. 31
    , 45
    (2013)). The disjunctive connector further demonstrates that
    § 1325(a)(1) and § 1325(a)(2) prohibit different conduct. Yet
    the government would have us read § 1325(a)(2) to prohibit
    much of the same conduct already prohibited by § 1325(a)(1).
    Construing § 1325(a)(1) as “a mere subset of” § 1325(a)(2),
    as the government urges, “disregard[s] what ‘or’ customarily
    means” and “effectively reads ‘or’ to mean ‘including’—a
    definition foreign to any dictionary we know of.” Id.7
    7
    The government raises a superfluity problem of its own, asserting
    that even under a narrower reading of § 1325(a)(2), the statute would still
    overlap with 19 U.S.C. § 1459, which imposes criminal penalties on
    “individuals arriving in the United States” who intentionally fail to “enter
    . . . at a border crossing point” or fail to “present themselves . . . for
    inspection.” 19 U.S.C. § 1459(a), (g). We are unpersuaded. Section 1459
    is located in the title of the U.S. Code dealing with customs, so it says
    little about the scope of § 1325(a)(2), which is in a separate title dealing
    with immigration. Indeed, § 1459 applies to all “individuals,” not just
    “aliens.” And in any event, overlap “is not uncommon in criminal
    statutes.” 
    Loughrin, 573 U.S. at 358
    n.4. What is uncommon, however,
    is reading one specific criminal provision to be subsumed by an adjoining
    one.
    UNITED STATES V. CORRALES-VAZQUEZ                         17
    Finally, a narrower interpretation of § 1325(a)(2)
    comports with the genesis of the phrase “eludes examination
    or inspection.” The statutory predecessor to § 1325(a)(2)
    broadly prohibited “enter[ing] without inspection.” 39 Stat.
    at 889. When Congress undertook to redraft the statute, it
    adopted language, including the verb “eludes,” from then-
    extant Canadian law. See Proposed Deportation Legislation:
    Hearing Before the H. Comm. on Immigration &
    Naturalization, 68th Cong. 8–9 (1924) (statement of Rep.
    Watkins) (“They use that term in Canada, where I got that
    language. . . . This section was taken from the Canadian law
    and it handles the situation satisfactorily, and our people up
    there want the same thing.”). And the Canadian law upon
    which § 1325(a)(2) was modeled imposed criminal penalties
    on “[a]ny person . . . who at a port of entry eludes
    examination by an officer.” Restriction of Immigration:
    Hearings on H.R. 5, H.R. 101, and H.R. 561 Before the H.
    Comm. on Immigration & Naturalization, 68th Cong. 680
    (1924) (emphasis added); see Immigration Act, 1910, 9 & 
    10 Edw. Ch. 7
    c. 27, § 33(7) (Eng.), reprinted in R.S.C. 1927, c. 93
    (Can.).8 The criminal act of “elud[ing] examination by an
    8
    The operative Canadian law largely mirrors the prohibitions
    contained in § 1325(a):
    Any person who enters Canada except at a port of
    entry, or who at a port of entry eludes examination by
    an officer, or Board of Inquiry, or who enters Canada
    by force or misrepresentation or stealth or otherwise
    contrary to any provision of this Act, or who escapes
    from custody of an officer or from an immigrant station
    when detained for any cause under this Act, shall be
    guilty of an offence under this Act . . . .
    Immigration Act, 1910, 9 & 
    10 Edw. Ch. 7
    c. 27, § 33(7) (Eng.), reprinted in
    R.S.C. 1927, c. 93 (Can.).
    18        UNITED STATES V. CORRALES-VAZQUEZ
    officer” was therefore understood at the time to occur “at a
    port of entry,” where examinations took place.
    Ultimately, the government’s reading of § 1325(a)(2)
    renders much of the remainder of § 1325(a) inoperative for no
    apparent reason. Rather than believing that Congress drafted
    such a strange statutory scheme, we instead ascribe to
    § 1325(a)(2) a narrower meaning, one that “make[s] sense
    rather than nonsense out of the corpus juris.” 
    Maslenjak, 137 S. Ct. at 1926
    (citation omitted). Together, § 1325(a)(1)
    and § 1325(a)(2) make it a crime to enter the United States
    without submitting to examination or inspection. But the two
    provisions operate separately based on the manner of entry.
    Section 1325(a)(1) covers conduct occurring at any time or
    place other than “a designated port of entry when it is open
    for inspection.”           
    Aldana, 878 F.3d at 882
    .
    Section 1325(a)(2), we now hold, covers the rest—conduct
    occurring at a designated port of entry that is open for
    inspection, where “examination [and] inspection by
    immigration officers” take place.
    B
    The government advances two additional arguments to
    support its broad interpretation of § 1325(a)(2). Neither is
    persuasive.
    First, the government asserts that its interpretation is
    supported by our decision in United States v. Rincon-Jimenez,
    
    595 F.2d 1192
    (9th Cir. 1979). Not so. In Rincon-Jimenez,
    “[t]he sole issue on appeal” was whether § 1325(a)(2) is “a
    continuing offense which tolls the statute of limitations so
    long as [the defendant] remains present” in the United States.
    
    Id. at 1193.
    We answered that question in the negative. 
    Id. UNITED STATES
    V. CORRALES-VAZQUEZ                  19
    “Because the[] examinations and inspections” referenced in
    § 1325(a)(2) “are to take place at the time of entry, a fixed
    point in time,” we held that the limitations period begins to
    run “as of the time of the illegal entry.” 
    Id. at 1193–94.
    Rincon-Jimenez did not purport to address the manner of
    entry necessary to violate § 1325(a)(2). To be sure, the
    defendant in that case “entered the United States . . . by
    traversing the beach between Tijuana and San Ysidro late at
    night,” and we remarked that “the offense described by
    § [1325(a)(2)] is consummated at the time an alien gains
    entry through an unlawful point and does not submit to [the
    required] examinations.” 
    Id. (emphasis added).
    But the
    defendant did not challenge the sufficiency of the evidence
    supporting his conviction, nor did we consider that question.
    “[C]ases are not precedential for propositions not
    considered,” United States v. Pepe, 
    895 F.3d 679
    , 688 (9th
    Cir. 2018), or for “questions which ‘merely lurk in the
    record,’” United States v. Shabani, 
    513 U.S. 10
    , 16 (1994)
    (citation and internal alteration omitted).
    Second, the government points out that § 1325(a)(1) uses
    the word “enters,” while § 1325(a)(2) does not. The term
    “entry” under the immigration laws “is a term of art requiring
    not only physical presence in the United States but also
    freedom from official restraint.” United States v. Argueta-
    Rosales, 
    819 F.3d 1149
    , 1158 (9th Cir. 2016). The
    government contends that § 1325(a)(2) “does not include
    ‘enter’ and is thus free from the additional doctrines that term
    brings.” The dissent raises a similar point. See Dissent at 28.
    Far from supporting the government’s interpretation,
    however, this argument only highlights the problem with it.
    As we have explained, the government’s interpretation of
    20        UNITED STATES V. CORRALES-VAZQUEZ
    § 1325(a)(2) renders the entry offense in § 1325(a)(1)
    superfluous, because there is no scenario in which an alien
    could “enter[] . . . the United States” at a non-designated time
    or place under § 1325(a)(1) without also “elud[ing]
    examination or inspection” under § 1325(a)(2). If, as the
    government suggests, § 1325(a)(2) does not require proof of
    “entry,”9 then the superfluity created by the government’s
    interpretation would have a significant impact—the
    government would simply charge all aliens who illegally
    cross into the United States under § 1325(a)(2), thereby
    eliminating entirely the doctrinal requirements accompanying
    the word “enters” in § 1325(a)(1). This only confirms that
    the government’s reading of § 1325(a)(2) is not the best one.
    Cf. Fowler v. United States, 
    563 U.S. 668
    , 677 (2011) (noting
    a “particular reluctance to ‘treat statutory terms’ as
    ‘surplusage’ ‘when the words describe an element of a
    criminal offense’” (quoting Ratzlaf v. United States, 
    510 U.S. 135
    , 140–41 (1994))).
    IV
    We hold that to “elude[] examination or inspection by
    immigration officers” in violation of § 1325(a)(2), the alien’s
    conduct must occur at a designated port of entry that is open
    for inspection and examination. We need not decide
    precisely what conduct at an open port of entry would
    constitute “elud[ing] examination or inspection,” as the
    government concedes in this case that Corrales crossed into
    the United States “far from a port of entry.” Accordingly,
    Corrales’s conviction for violating § 1325(a)(2) is
    REVERSED.
    9
    We have not previously considered whether this proposition is
    correct, and we need not and do not do so here.
    UNITED STATES V. CORRALES-VAZQUEZ                 21
    BYBEE, Circuit Judge, concurring:
    I write separately to note my sympathy for the
    government’s position in this case. For the reasons given in
    the opinion for the court, the government’s reading of
    8 U.S.C. § 1325(a)(2) is wrong. But I understand its impulse
    to try to charge illegal entry under § 1325(a)(2) rather than
    under § 1325(a)(1). As I have previously explained, much of
    our illegal-entry and illegal-reentry jurisprudence is a mess.
    See United States v. Argueta-Rosales, 
    819 F.3d 1149
    ,
    1162–71 (9th Cir. 2016) (Bybee, J., concurring in the
    judgment and dissenting as to everything else).
    The challenge for the government is that we have made
    § 1325(a)(1)—which makes it a crime for an alien to enter or
    attempt to enter the United States outside an open port of
    entry—increasingly difficult to enforce. There are two
    problems. The first problem stems largely from our
    understanding of the official restraint doctrine, which “has
    reached an absurd position.” 
    Id. at 1162.
    To prove that an
    alien has “entered” the United States, the government must
    prove not only that the alien crossed into the United States,
    but also that the alien was at some point “free from official
    restraint.” 
    Id. We consider
    an alien under “official restraint”
    so long as government surveillance cameras capture the alien
    crossing into the country, or a border patrol agent who
    observed the crossing through binoculars is able to maintain
    continuous observation of the alien while pursuing him or
    her. This has led us to “some very strange ‘how-many-
    angels-are-dancing-on-the-head-of-a-pin’ inquiries.” See 
    id. at 1165–67
    (discussing United States v. Pacheco-Medina,
    
    212 F.3d 1162
    (9th Cir. 2000), and its progeny).
    22        UNITED STATES V. CORRALES-VAZQUEZ
    The second problem is that to prove that an alien
    “attempted illegal entry or reentry,” the government must
    prove that the alien had “the specific intent to reenter ‘free
    from official restraint’” by “any government official.” 
    Id. at 1168–69
    (quoting United States v. Lombera-Valdovinos,
    
    429 F.3d 927
    , 929 (9th Cir. 2005)). Under this rule, an alien
    who “crosses into the United States surreptitiously and
    outside a port of entry,” but who never achieves freedom
    from official restraint, cannot be convicted of attempted
    illegal entry or reentry as long as the alien “tells border
    control that he came in hopes of remaining under restraint by
    any government official—even in a federal prison far from
    the border—once in the United States.” 
    Id. at 1162.
    We have
    overturned at least two convictions where the aliens, who
    were captured in the act of crossing the border outside a port
    of entry, told border officials that they were entering the
    country in the hopes of being incarcerated. Since the aliens
    wished not to be free of official restraint, the government
    couldn’t prove that they intended to be free of official
    restraint. See 
    id. at 1158
    (reversing and remanding for a new
    trial where the trier of fact might have concluded that the
    alien was delusional and seeking protection when he climbed
    the 10-foot primary fence); 
    Lombera-Valdovinos, 429 F.3d at 928
    –29 (reversing the conviction where the alien crossed the
    primary fence and told the official he wished to go to jail).
    As I pointed out in Argueta-Rosales, this “has left our law
    stuck in a catch-22 worthy of Joseph Heller: Aliens who
    cross the border hoping to enter the United States free of
    restraint must be restrained, while aliens who cross hoping to
    be restrained by the United States must be freed. Under [this]
    regime, no one gets what he wants, but some people go to
    jail, while everyone else goes 
    home.” 819 F.3d at 1171
    .
    UNITED STATES V. CORRALES-VAZQUEZ                             23
    In light of this doctrinal minefield, I suspect that the
    government is charging aliens who would otherwise be
    charged with entering at a non-designated time or place under
    § 1325(a)(1) with eluding inspection under § 1325(a)(2),
    which (according to the government) does not suffer from the
    infirmities of our “official restraint” and “specific intent to
    enter free from official restraint” law. Today we require the
    government to march in a straight line when it charges
    violations of § 1325(a). But we should also clean up our own
    mess under § 1325(a)(1) at the first opportunity.
    FERNANDEZ, Circuit Judge, dissenting:
    As the majority points out, Corrales argues that his
    conviction should be reversed because the evidence was
    insufficient to convict him of the misdemeanor of “elud[ing]
    examination or inspection by immigration officers.” 8 U.S.C.
    § 1325(a)(2).1
    The district court determined that the elements of the
    crime spelled out in § 1325(a)(2) were: (1) the accused was
    an alien, and (2) the accused knowingly eluded examination
    or inspection2 by immigration officers. It then held that the
    evidence proved beyond a reasonable doubt that Corrales had
    committed that offense. Corrales asserts that the district court
    erred because, as he sees it, the government was required to
    1
    Hereafter, unless otherwise indicated, section numbers refer to
    sections of Title 8 of the United States Code.
    2
    Hereafter, I will use the word “inspection” to refer to both inspection
    or examination.
    24          UNITED STATES V. CORRALES-VAZQUEZ
    prove that he either eluded inspection at a port of entry,3 or at
    least, eluded inspection “by an immigration officer at the
    moment he entered the United States.” In that respect, he
    insists that in order to “elude,” the alien must have snuck
    through a port of entry, or if the alien entered the country
    elsewhere, “snuck by” an officer who was on the scene at the
    moment of entry. Because there was no evidence of those
    elements, he argues, his conviction cannot stand. My
    colleagues agree; I do not.
    In interpreting statutes “[t]he starting point of [the]
    inquiry is the language of the statute itself.” United States v.
    Cabaccang, 
    332 F.3d 622
    , 625 (9th Cir. 2003) (en banc). In
    so doing, we use canons of construction. Those canons:
    help courts determine the meaning of
    legislation, and in interpreting a statute a court
    should always turn first to one, cardinal canon
    before all others. We have stated time and
    again that courts must presume that a
    legislature says in a statute what it means and
    means in a statute what it says there. When
    the words of a statute are unambiguous, then,
    this first canon is also the last: “judicial
    inquiry is complete.”
    Conn. Nat’l Bank v. Germain, 
    503 U.S. 249
    , 253–54, 
    112 S. Ct. 1146
    , 1149 
    117 L. Ed. 2d 391
    (1992) (internal citations
    omitted). When I apply those canons and rules here, it is
    immediately apparent to me that the simple words of
    § 1325(a)(2) will not bear Corrales’ attempt to insert the
    3
    See United States v. Aldana, 
    878 F.3d 877
    , 880, 882 (9th Cir. 2017)
    cert. denied, __ U.S.__, 
    139 S. Ct. 157
    , 
    202 L. Ed. 2d 96
    (2018).
    UNITED STATES V. CORRALES-VAZQUEZ                             25
    limiting phrase “at a port of entry.” Nothing in the enactment
    allows us to add that language to that statute’s wording. In
    fact, if that limitation were intended, Congress would have
    included it just as it had included “at any time or place other
    than as designated by immigration officers” in § 1325(a)(1).
    Cf. Nken v. Holder, 
    556 U.S. 418
    , 430, 
    129 S. Ct. 1749
    , 1759,
    
    173 L. Ed. 2d 550
    (2009). It did not do so.4
    Corrales’ other attempt to restrict the reach of
    § 1325(a)(2) has more purchase, but also fails. He argues that
    “elude” requires that the alien must cunningly or slyly slip or
    creep by (as he puts it, sneak by) an opponent. But, as I see
    it, all the language means is that the alien has avoided or
    evaded those who would address him or his presence. I do
    agree that an alien who seeks to illegally cross the borders of
    the United States will often show some initiative,
    4
    The majority seeks to support its position by pointing to Congress’
    knowledge of an earlier Canadian statute that provided: “Any person . . .
    who at a port of entry eludes examination by an officer, or Board of
    Inquiry, . . . shall be guilty of an offence . . . .” Immigration Act, 1910, 9
    & 
    10 Edw. Ch. 7
    c. 27, § 33(7) (Eng.), reprinted in R.S.C. 1927, c. 93 (Can.);
    see also Restriction of Immigration: Hearings Before the H. Comm. on
    Immigration & Naturalization on H.R. 5, H.R. 101, and H.R. 561, 68th
    Cong. 680 (1924) (text of Canadian statute); Proposed Deportation
    Legislation: Hearings Before the H. Comm. on Immigration &
    Naturalization, 68th Cong. 8–9 (1925) (statement of Rep. Elton Watkins,
    Member, H. Comm. on Immigration & Naturalization, regarding origin of
    language). But that knowledge points in the other direction. Congress
    ultimately adopted much of the Canadian provision’s language, including
    the word “eludes.” See Act of Mar. 4, 1929, Pub. L. No. 70-1018, § 2, 45
    Stat. 1551, 1551. However, Congress omitted the phrase “at a port of
    entry”—essentially the very phrase that the majority now inserts, even
    though Congress has never seen fit to return the phrase to the statutory
    scheme.
    26          UNITED STATES V. CORRALES-VAZQUEZ
    resourcefulness,5 desire to evade,6 and even some degree of
    what can be seen as slyness or cunning,7 in an attempt to enter
    unnoticed.8 In fact, if an alien desires to cross the United
    States border without being stopped or detected by barriers
    (natural or otherwise), or technological devices, or our alert
    immigration and border patrol officers, some of the
    characteristics captured by the word “elude” will be in that
    person’s makeup and plans. But that just emphasizes the
    good sense of Congress when it used that expansive word; it
    does not indicate that any of those possibilities restricts the
    meaning of the statutory language or makes it ambiguous.
    Put otherwise, it simply means that the alien’s characteristics
    and plans have enabled him to cross into the United States
    illegally and without inspection, despite all of this country’s
    efforts to prevent that eventuality. As we have said,
    “[b]ecause these examinations and inspections are to take
    place at the time of entry, a fixed point in time, this suggests
    that the offense described by § 1325(2) is consummated at the
    5
    See Encarta World English Dictionary 582 (1999) (“to escape from
    or avoid somebody or something by cunning, skill, or resourcefulness”).
    6
    See 1 The Compact Edition of the Oxford English Dictionary 847
    (1st ed. 1971) (“[t]o evade compliance with or fulfilment of (a law, order,
    demand, request, obligation, etc.)”); 3 The Oxford English Dictionary 97
    (1933) (same); 3 A New English Dictionary on Historical Principles pt.
    I at 97 (James A. H. Murray & Henry Bradley eds., Oxford, The
    Clarendon Press 1891) (same).
    7
    See United States v. Oscar, 
    496 F.2d 492
    , 494 (9th Cir. 1974). In
    the situation at hand, the aliens in question were clever enough to wrap
    blankets around their feet to conceal their tracks.
    8
    See Webster’s Third New International Dictionary 738 (Philip
    Babcock Gove ed., 1986) (“to escape the notice or perception of”); see
    also Webster’s New Collegiate Dictionary 267 (2d ed. 1951).
    UNITED STATES V. CORRALES-VAZQUEZ                       27
    time an alien gains entry through an unlawful point and does
    not submit to these examinations.” United States v. Rincon-
    Jimenez, 
    595 F.2d 1192
    , 1193–94 (9th Cir. 1979). In short,
    Corrales’ attempt to restrict the reach of § 1325(a)(2)’s
    language does not persuade me.
    But, says Corrales, if we do not restrict § 1325(a)(2) as he
    desires, the result will be that we have rendered § 1325(a)(1)
    redundant and surplus. That is so, he insists, because if an
    alien could be convicted under § 1325(a)(2) for crossing the
    border at a place which is not a designated port of entry or a
    place where no government officer is close at hand, any
    prosecution under § 1325(a)(1) would necessarily be
    encompassed by § 1325(a)(2), which would make the
    § 1325(a)(1) language surplusage. That argument is
    interesting, but in my view it is not sufficient to earn Corrales
    the obsidional crown.
    As I have already noted, if the statutory language is not
    truly ambiguous, that ends the matter and we need not go on
    to consider the canon that seeks to avoid redundancy. See
    Conn. Nat’l 
    Bank, 503 U.S. at 253
    –54, 112 S. Ct. at 1149.
    Moreover, even if there is redundancy, I am not gallied by
    that fact. It is not as if redundancy across statutes is a rarity.
    See 
    id. at 253,
    112 S. Ct. at 1149; see also Marx v. Gen.
    Revenue Corp., 
    568 U.S. 371
    , 385, 
    133 S. Ct. 1166
    , 1177,
    
    185 L. Ed. 2d 242
    (2013). I do recognize that it is unusual to
    find redundancy within a single statutory section,9 but even
    then I see no basis for engaging in judicial legislation to
    artificially force a restriction onto a statute that its language
    does not encompass. Furthermore, it is probable that
    9
    See Marinello v. United States, __ U.S. __, __, 
    138 S. Ct. 1101
    ,
    1107, 
    200 L. Ed. 2d 356
    (2018).
    28         UNITED STATES V. CORRALES-VAZQUEZ
    Congress acted with caution because it was attempting to
    repair existing immigration laws which fostered “[i]nequities,
    gaps, loopholes, and lax practices [that had] become apparent
    through the years.” H.R. Rep. No. 82-1365, at 27 (1952). “In
    any event, our hesitancy to construe statutes to render
    language superfluous does not require us to avoid surplusage
    at all costs.” United States v. Atl. Research Corp., 
    551 U.S. 128
    , 137, 
    127 S. Ct. 2331
    , 2337, 
    168 L. Ed. 2d 28
    (2007). In
    this particular area, Congress would have seen10 the need for
    caution because, for example, the seemingly plain word
    “enters” that appears in § 1325(a)(1) could take on somewhat
    arcane legal meanings.11 As it turns out, those legal meanings
    have created some complications and exceptions in a
    statutory regime which is intended to impose penal sanctions
    upon those who illegally cross the borders of this country.12
    That would explain Congress’ use of statutory language that,
    if somewhat redundant, is not actually surplusage in a
    pejorative sense. We can assume that Congress sought to
    assure relatively complete coverage of the illegal border-
    crossing problem, despite the unforeseen vagaries and
    10
    See Lorillard v. Pons, 
    434 U.S. 575
    , 580–81, 
    98 S. Ct. 866
    , 870,
    
    55 L. Ed. 2d 40
    (1978).
    11
    See Ex parte Chow Chok, 
    161 F. 627
    , 630–31 (C.C.N.D.N.Y.),
    aff’d sub nom. Chow Chok v. United States, 
    163 F. 1021
    (2d Cir. 1908)
    (mem.) (per curiam); see also Kaplan v. Tod, 
    267 U.S. 228
    , 230–31, 45 S.
    Ct. 257, 257–58, 
    69 L. Ed. 585
    (1925).
    12
    See, e.g., United States v. Vazquez-Hernandez, 
    849 F.3d 1219
    , 1228
    (9th Cir. 2017); United States v. Argueta-Rosales, 
    819 F.3d 1149
    ,
    1158–59 (9th Cir. 2016); United States v. Cruz-Escoto, 
    476 F.3d 1081
    ,
    1085–86 (9th Cir. 2007); United States v. Lombera-Valdovinos, 
    429 F.3d 927
    , 929–30 (9th Cir. 2005); United States v. Hernandez-Herrera,
    
    273 F.3d 1213
    , 1218–19 (9th Cir. 2001); United States v. Pacheco-
    Medina, 
    212 F.3d 1162
    , 1164 (9th Cir. 2000).
    UNITED STATES V. CORRALES-VAZQUEZ                 29
    vicissitudes of changing legal and physical conditions in
    border protection and in methods of evading that protection.
    In other words, canons of interpretation are meant to help us
    carry out congressional purposes, not to obstruct those
    purposes. By the way, without undue effort one can think of
    situations where an alien’s illegal crossing of our borders can
    fall into one or the other of the provisions, but Congress did
    not need to depend on the strength or weakness of the
    interpretive prowess of one court or another. If § 1325(a)(1)
    and § 1325(a)(2) amount to a form of overkill, so be it; they
    are what Congress provided.
    Thus, again, I would reject Corrales’ assertion that more
    evidence was required to convict him under § 1325(a)(2).
    Instead, I would affirm, despite Corrales’ earnest, if
    Daedalian, argument that he has discovered some newly
    hatched elements of § 1325(a)(2). In my opinion, those
    hatchlings are not actually elements of the offense at all.
    They did not have to be proved beyond a reasonable doubt in
    order to convict Corrales. Therefore, I respectfully dissent.