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United States v. Gaspar-Miguel

United States Court of Appeals, Tenth Circuit

January 16, 2020

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
PETRONA GASPAR-MIGUEL, Defendant-Appellant.

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

          Amanda Skinner, Assistant Federal Public 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.

          Dustin 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.

          Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.

          Mary Beck Briscoe Circuit Judge

         Defendant-Appellant 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.

         I

         Neither 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.

         Gaspar 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.

         The 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).

         II

         The 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.

         In order to align the rights of aliens who had technically crossed the border but were not free to move within the general population with the 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[1]) (holding, in the criminal context, that the court would not "disturb" the official restraint theory of entry).

         In 1952, Congress enacted the Immigration and 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 ...


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