from the United States District Court for the District of New
Mexico (D.C. No. 2:18-PO-02441-RB- GBW-1)
Skinner, Assistant Federal Public Defender (Stephen P. McCue,
Federal Public Defender, with her on the briefs), Office of
the Federal Public Defender for the District of New Mexico,
Las Cruces, New Mexico, appearing for Appellant.
C. Segovia, Assistant United States Attorney (John C.
Anderson, United States Attorney, with him on the brief),
Office of the United States Attorney for the District of New
Mexico, Las Cruces, New Mexico, appearing for Appellee.
BRISCOE, KELLY, and BACHARACH, Circuit Judges.
Beck Briscoe Circuit Judge
Petrona Gaspar-Miguel (Gaspar) appeals the district
court's affirmance of her conviction for entering the
United States in violation of 8 U.S.C. § 1325(a)(1).
Gaspar contends the district court's conclusion that she
"entered" the United States even though she was
under the constant surveillance of a border patrol agent is
contrary to established law defining "entry."
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
reject Gaspar's constant surveillance argument and affirm
the judgment of the district court.
party disputes the relevant facts. See Aplt.'s
Br. at 16; Aple.'s Br. at 10. A border patrol agent
monitoring the border observed a group of people, of whom
Gaspar was one, cross the border from Mexico into the United
States by walking around a 15-foot high fence. ROA II at
16-17, 19, 20-22, 34. The agent radioed for assistance, and
continued to observe the group as they proceeded further into
the United States. Id. The agent watched the group
with binoculars continuously from the time of their crossing
until they were apprehended by other agents. Id. at
21-23. However, he could not make out any details of the
individuals, even to determine how many there were.
was charged with illegal entry without inspection, in
violation of 8 U.S.C. § 1325(a). Section 1325(a)(1)
provides for criminal punishment of "any alien who (1)
enters or attempts to enter the United States at any
time or place other than as designated by immigration
officers . . ." 8 U.S.C. § 1325(a)(1) (emphasis
added). A motion hearing and bench trial were held before a
magistrate judge, who found Gaspar guilty on the theory that
she had, in fact, "entered" the United States.
Gaspar appealed to the district court and argued her
conviction should be overturned because "she did not
'enter' the United States within the meaning of
§ 1325(a) because she was under official restraint
[through constant surveillance] from the time of her entry
until her arrest." ROA I at 35.
district court found that the word "enters" in the
immigration context has a long history of requiring not just
physical presence in the country, but also freedom from
official restraint. But the district court declined to hold
that continuous surveillance constituted official restraint
and found there was sufficient evidence to convict Gaspar of
violating 8 U.S.C. § 1325(a)(1).
concept of "freedom from official restraint" as a
requirement for "entry" in immigration law began in
the civil context, as part of the distinction between
excludable and deportable aliens. ROA Vol. I at 212-218;
see also United States v. Argueta-Rosales, 819 F.3d
1149, 1162-63 (9th Cir. 2016) (Bybee, J., concurring in the
judgment only). Excludable aliens, turned away at the border,
received few due process protections; in contrast, deportable
aliens, because they could "move freely within the
country and mix with the general population," had
greater procedural and substantive rights because the Due
Process Clause applies to all "persons" within the
United States. Id.
order to align the rights of aliens who had technically
crossed the border but were not free to move within the
general population with the rights of those aliens turned
away at the border, courts created the doctrine of freedom
from official restraint. Id. The doctrine is based
on the legal fiction that an entry is not accomplished until
the alien is free from official restraint and can move freely
within the country. Id. While the doctrine was more
typically discussed in the civil context, some courts applied
it in criminal cases as well. See, e.g., United
States v. Vasilatos, 209 F.2d 195, 197 (3d Cir.
1954) (holding, in the criminal context, that
the court would not "disturb" the official
restraint theory of entry).
1952, Congress enacted the Immigration and Nationality Act
(INA). Pub. L. No. 82-414, 66 Stat. 163 (June 27, 1952). The
INA consolidated statutory authority over a wide range of
immigration issues and laid out a broad definition of the
term "entry." Id. at 163-67. However, even
after the passage of the INA with entry's broad
definition, courts continued to treat "freedom from
official restraint" as a necessary component of
"entry." See, e.g., United States v.
Oscar, 496 F.2d ...