United States v. Oracio Corrales-Vazquez

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.