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IMMIGRATION LAW--Leap of Faith: How an Alien's Timely Reentry into the United States Thwarted His Prosecution.

IMMIGRATION LAW--Leap of Faith: How an Alien's Timely Reentry into the United States Thwarted His Prosecution--United States v. Argueta-Rosales, 819 F.3d 1149 (9th Cir. 2016).

Pursuant to the Reentry of Removed Aliens statute (codified at 8 U.S.C. [section] 1326), an alien, who was forcibly removed from the United States, is required to satisfy specific statutory standards in order to legally reenter the United States. (1) In measuring whether an alien has entered the United States for purposes of violating [section] 1326, they must possess the requisite intent; meaning they entered the country without consent and to be "free from official restraint." (2) In United States v. Argueta-Rosales, (3) the Ninth Circuit Court of Appeals considered whether Omar Argueta-Rosales entered the United States "free from official restraint." (4) The Ninth Circuit ultimately vacated and remanded the matter due the government's failure to prove, beyond a reasonable doubt, that Argueta-Rosales' intent was to enter the United States "free from restraint" and that the lower court's decision was predicated on an erroneous legal standard. (5) Omar Argueta-Rosales was born in Mexico and he, along with his mother, migrated to Los Angeles, California. (6) In 2006, when Argueta-Rosales was sixteen, an immigration judge ordered Argueta-Rosales to be removed from the United States and brought back to Mexico. (7) In 2010, Argueta-Rosales was apprehended for unlawfully trying to enter the United States and upon the conclusion of trial, in 2011, he was placed on probation. (8) When Argueta-Rosales was sent back to Mexico, he started abusing methamphetamines. (9)

On November 29, 2013 Argueta-Rosales again attempted to cross over into the United States illegally at the San Ysidro port of entry in California. (10) The border agent, Agent Jeffrey Schwinn, instructed Argueta-Rosales to head back to Mexico. (11) After disregarding Agent Schwinn's request, Argueta-Rosales was placed under arrest. (12) Argueta-Rosales was apprehended and subsequently interviewed in his cell, and towards the end of the interview, Argueta-Rosales became delusional. (13) He started describing people who he believed to be alongside him in his jail cell, who he believed were out to kill him. (14)

In February of 2014, Argueta-Rosales was formally charged "with attempting to reenter the United States" illegally, which was in violation of the Reentry of Removed Aliens statute. (15) Argueta-Rosales, being a previously removed alien, did not receive consent to reenter the United States from the Attorney General or prove her consent was not required; therefore, he failed to satisfy the statute's requirements for proper reentry. (16)

Defense counsel argued that Argueta-Rosales, under a drug-induced delusion, did not intend to enter "free from official restraint," but that his sole intention was to be protected by United States law enforcement. (17) The Southern District Court of California rejected defense counsel's argument because regardless of his delusion, "(1) [Argueta-Rosales] knew he was crossing into the United States and (2) knew he did not have permission to do so." (18) In 2015, Argueta-Rosales filed an appeal in the Ninth Circuit Court of Appeals, who vacated and remanded the district court's decision and held that despite his delusions, Argueta-Rosales did not enter the country and possess the intent to be "free from official restraint" but instead to be placed into protective custody. (19)

Under immigration law, immigrants who entered the country illegally were sympathetically safeguarded from prosecution under U.S. law. (20) Prior to 2010, the Reentry of Removed Aliens statute was rarely prosecuted as a criminal offense, however, it is now among one of the most prevalent criminal charges brought by federal prosecutors. (21) Federal prosecutors seldom use criminal charges under the circumstances with the goal being to "[reserve] the criminal law to punish the 'worst of the worst' ... those that 'citizens of any community would want off the streets.'" (22) This ideological shift was set into motion by the United States Attorney's Office for the Southern District of California in an attempt to deter these criminal offenders from reentering the United States. (23) An alien can be removed for a plethora of different reasons, but in 2016, ninety-two percent of all interior removals were previously convicted of a crime. (24)

In order to be prosecuted under the Reentry of Removed Aliens statute, an alien must: (1) be previously removed from the United States; and (2) have the sole intent to enter the country to be "free from official restraint." (25) Upon the statute's enactment, an important case in employing this concept was United States v. Pacheco-Medina, (26) accentuating the basis for determining whether or not an alien possessed the intent to be "free from official restraint." (27) In Pacheco-Medina, the defendant, who was previously deported, was captured by border agents after being spotted on a surveillance camera. (28) Pacheco-Medina illustrates the potential scenarios for an alien to be enter the United States "free from official restraint" under the Reentry of removed aliens statute, such as an alien purposefully exercising their free will or physical agility to evade border inspection. (29) The determinative test exemplified by the Pacheco-Medina Court is the alien's desire to freely amalgamate with the general population of the United States. (30)

If the alien does not have the intent to enter the United States solely to be "free from official restraint," they are not considered to have entered the United States for purposes of [section] 1326. (31) Although an alien may have entered the United States in the literal sense, for statutory purposes, entry is not accomplished until they are "free from official restraint." (32) The case of United States v. Parga-Rosas, (33) demonstrates the legal fiction of entry under the statute and how if the alien does not have that requisite intent, he is precluded from prosecution under the Reentry of Removed Aliens statute. (34) In Parga-Rosas, the defendant, previously deported, was apprehended at a complex in California and claimed that his reentry was not voluntary. (35) The Court held that "an alien's mere physical presence on United States soil [...] is insufficient to convict him of being found in the United States in violation of [section] 1326" and that the government must prove that at the time of apprehension, the alien entered for the sole purpose of being "free from official restraint." (36)

In United States v. Argueta-Rosales, (37) the Ninth Circuit Court of Appeals considered if the previously deported defendant, Omar Argueta-Rosales, had the sole intent to enter the United States "free from official restraint" thus, violating the Reentry of Removed Aliens statute. (38) The Ninth Circuit Court of Appeals proclaimed that a violation of the Reentry of Removed Aliens statute is a specific intent crime that requires the defendant solely enter the United States to be "free from official restraint." (39) If the defendant does not have the requisite intent to enter "free from official restraint," he is deemed to have never entered the United States for purposes of the Reentry of removed aliens statute. (40) The Court emphasized that whenever there is a contradictory evidence relating the defendant's intent, the government has the burden of proving beyond a reasonable doubt that the defendant did possess such unlawful intent. (41)

Moreover, the Court proclaimed, while he was physically present in the United States, Argueta did not solely enter the San Ysidro port of entry in California solely to be "free from official restraint." (42) The Court examined Arugeta's drug-induced state, coupled with his lackluster attempt to avoid border patrol, in evaluating his intent. (43) Consequently, Argueta-Rosales did not possess the statute's obligatory intent because he entered the United States only to be imprisoned, which was wholly motivated by the fear for his own well-being. (44) The dissent in Argueta-Rosales rebutted the majority's lenient application of the specific intent requirement, finding that aliens can now act as if they wanted to enter the United States "free from official restraint" and if apprehended, can declare they wanted to go to jail and be protected from prosecution under the Reentry of Removed Aliens statute. (45)

The Ninth Circuit Court of Appeals incorrectly vacated and remanded the district court's decision in finding that Argueta-Rosales did not enter the United States with the intent to be "free from official restraint" and thus, could not be prosecuted under the Reentry of Removed Aliens statute. (46) By vacating and remanding this decision, the court preserved the idea of a violation of the Reentry of Removed Aliens statute being a specific intent crime, but more importantly broadened the concept of what it means to be "free from official restraint" to an immeasurable position. (47) Furthermore, the Court improperly applied precedent within the circuit by permitting the official restraint doctrine to all government officials, creating an ambiguity in the law relating to illegal reentry. (48)

Unlike the district court, the Ninth Circuit Court correctly applied a specific intent standard, as required by statute, however, incorrectly determined Argueta-Rosales did not possess the statute's requisite intent. (49) In their analysis of the statute, the Court properly determined that, amongst an alien's intentions, he must enter the United States "free from official restraint," but failed to weigh what previous cases within the Ninth Circuit applied under similar circumstances. (50) The legislative intent behind the statute's enactment was to preclude and deter previously deported aliens, such as Argueta-Rosales, from recurrently entering the United States illegally and the Court failed to consider that in their final judgment. (51) Additionally, the Court correctly developed the intent requirement of the statute, declaring a defendant can have multiple objectives when entering the United States but to sustain a conviction, the government must prove one of the objectives was to enter the United States "free from official restraint." (52)

Furthermore, the Court inaccurately determined that official restraint should extent to all government officials. (53) In doing so, the Court preserved the idea that legal entry for previously removed aliens is not limited to crossing through a point of entry, as dictated by the statute. (54) Despite the broad interpretation of "official restraint" within the Ninth Circuit, the decision in Argueta-Rosales magnifies the concept of when an alien is placed under "official restraint" beyond quantifiable criteria. (55) In the future, defendants apprehended by border patrol agents can allege they intended to enter the United States to be placed under restraint of a U.S. government official, even if that official is located hundreds of miles away from the border. (56)

In United States v. Argueta-Rosales, the Ninth Circuit Court of Appeals considered whether Omar Argueta-Rosales possessed the intent to enter the United States "free from official restraint." As Circuit Judge Raymond C. Fisher asserts in his opinion, whenever there is ambiguity about a previously removed alien's intent in entering the United States, the government has the burden of proving beyond a reasonable doubt that the defendant entered the United States to exercise his free will free from the restraint of any government official. By determining that an extra level of protection to previously removed aliens so long as upon apprehension, they declare their purpose to enter the United States was to be imprisoned, the Argueta-Rosales court shelters the prosecution of numerous previously removed aliens under the Reentry of removed aliens statute. In the future, true or not, previously removed aliens captured in the United States can claim their intent was to enter the United States to be detained by any United States official, which would likely prevent them from being prosecuted for entering the United States illegally again.

(1.) See 8 U.S.C. [section] 1326 (1952) (outlining requirements for previously removed alien to satisfy for reentry). The statute discusses what must be done for an alien, previously removed, to be readmitted into the United States. Id. Under [section] 1326(a), any alien who:
   (1) has been denied admission, excluded, deported, or removed or
   has departed the United States while an order of exclusion,
   deportation, or removal is outstanding, and thereafter;
   (2) enters, attempts to enter, or is at any time found in, the
   United States, unless (A) prior to his reembarkation at a place
   outside the United States or his application for admission from
   foreign contiguous territory, the Attorney General has expressly
   consented to such alien's reapplying for admission; or (B) with
   respect to an alien previously denied admission and removed, unless
   such alien shall establish that he was not required to obtain such
   advance consent under this or any prior Act, shall be fined under
   title 18, United States Code, or imprisoned not more than 2 years
   or both.


Id. [section] 1326(b) illustrates the necessary penalties for the reentry of certain aliens. 8 U.S.C. [section] 1326(b). Under this provision, the statute discusses the correlation between the penalty and the reasoning behind the alien's previous removal from the United States. Id. Under [section] 1326(b), any alien:
   (1) whose removal was subsequent to a conviction for commission of
   three or more misdemeanors involving drugs, crimes against the
   person, or both, or a felony (other than an aggravated felony),
   such alien shall be fined under title 18 United States Code,
   imprisoned not more than 10 years, or both;
   (2) whose removal was subsequent to a conviction for commission of
   an aggravated felony, such alien shall be fined under such title,
   imprisoned not more than 20 years, or both...


Id. See also United States v. Lombera-Valdovinos, 429 F.3d 927, 928 (9th Cir. 2005) (highlighting alien's rights under [section] 1326). Entering the country is not measured solely by one's physical presence. Id. To determine whether an alien has entered the United States one must understand that "'enter' has a narrower meaning than its colloquial usage." Id. at 928. An alien must do so "free from official restraint." Id. "Free from restraint" within the Ninth Circuit has been interpreted broadly. Id. at 929. Official restraint is generally limited to Department of Homeland Security officers, but on occasion has expanded to all government officials. Id. It means that the alien intended to "cross the border and are free to go about ... [meaning they are] at large or at will within the United States." Id. See also United States v. Pancheo-Medina, 212 F.3d 1162, 1164-66 (9th Cir. 2000) (discussing elements of crime under [section] 1326). The evidence in determining the illegality of an alien's reentry into the United States is predicated on his intent. Id. at 1192-98. The defendant must possess the requisite intent of entering the United States free from restraint. Id. See generally Manual of Model Criminal Jury Instructions: For the Courts of the Ninth Circuit Rule 9.6 (2016), available at http://www3.ce9.uscourts.gov/jury-instructions/node/412 (illustrating intent requirement under statute). "The government must prove that the alien had a specific intent to remain in the country free from official restraint." Id. "If there is conflicting evidence as to whether the defendant possessed any specific intention to remain free of restraint, the jury should decide the issue." Id.

(2.) See Maurica D. Thomas, Alien Denied Entry to Another Country and Returned Involuntarily to United States, Not "Found In" United States, 37 Suffolk Transnat'l L. Rev. 503 (2014) (describing standard of "free from official restraint"). In order for an individual to be "free from official restraint," one can do so from any government official. Id. at 512. Aliens that are "free to go at large and mix with the population remain under official restraint." Id. at 510. See, e.g., Lombera Valdovinos, 429 F.3d at 929-32 (highlighting "entering" United States under statute requires more than physical presence). "If the alien is restrained by the agents or barriers of the Department of Homeland Security at the border, they are not yet free to go about or at large within the United States." Id. at 929. See also United States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir. 2001) (discussing legal fiction not created until alien is "free from official restraint"). See also United States v. Hernandez-Herrera, 273 F.3d 1213, 1218 (9th Cir. 2001) (illustrating concept "free from official restraint" interpreted broadly). The idea of an individual being "free from official restraint" may take several forms other than being in physical custody. Id. at 1218-19. The concept could be measured in numerous ways with the operative question being "[d]oes he have the freedom to go at large and mix with the population." Id. at 1219. Additionally, if he is discovered some time after he has entered the country; he will be deemed to have entered the United States free from restraint. Id. See also United States v. Pacheco-Medina, 212 F.3d 1162 (9th Cir. 2000) (highlighting "an alien must be under official restraint at all times during and subsequent to physical entry"). See also Matthew J. Geyer, Involuntary Return and the "Found In" Clause of 8 U.S.C. [section] 1326(a): An Immigration Conundrum, 83 Fordham L. Rev. 2091 (2015) (describing issues with legal fiction created by statute). The legal fiction created by the statute is the idea that the individual cannot be "found in" the United States until he possesses the requisite intent to do so "free from official restraint." Id. at 2111-12.

(3.) 819 F.3d 1149, 1149 (9th Cir. 2016).

(4.) See id. at 1155 (providing issue under consideration).

(5.) See id. at 1156-57 (stating holding of case). See Lombera Valdovinos supra note 2 and accompanying text (discussing Court's reasoning behind vacating the lower court's decision). The Court held that the "found in" facet of the statute was not satisfied because the government failed to prove that the defendant entered the United States for the sole purpose of being "free from official restraint." Id. The facts and circumstances led the Court to determine that Argueta-Rosales entered the country to enter protective custody. Argueta-Rosales, 819 F.3d at 1158. The defendant leapt over the fence while in a drug-induced psychosis to seek refuge from what he believed to be an immediate threat to his life. Id. But see United States v. Martin-Plascencia, 532 F.2d 1316 (9th Cir. 1976) (finding defendant was "free from official restraint" because exercising free will on United States soil). The defendant was deemed to be "free from official restraint" because he was "exercising his free will, youthful enterprise, and physical agility in evading fixed physical barriers in accomplishing his entry." Id. at 1317. Since the defendant had "surreptitiously by-passed the questioning and inspection areas and, out of the view of the immigration officials, crawled through an opening in a six-foot chain link fence" he was "free from official restraint." Id. The Court found the defendant's violation of [section] 1325(a) to be a large factor in determining his exertion of free will. Id. [section] 1325(a) determines whether an alien is improperly entering the United States. 8 U.S.C. [section] 1325. 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, United States Code, or
   imprisoned not more than 6 months, or both, and, for a subsequent
   commission of any such offense, be fined under title 18, United
   States Code, or imprisoned not more than 2 years, or both.


Id. The Court held that the erroneous jury instruction was insufficient that Argueta-Rosales knew that he was crossing into the United States, even if he knew he did not have permission to do so. See Argueta-Rosales, 819 F.3d at 1168. If Argueta-Rosales' sole intention was to be placed into protective custody within the United States, then "no rational trier of fact could conclude [he] was guilty of the specific intent crime of attempted illegal reentry [under [section] 1326]." Id.

(6.) Argueta-Rosales, 819 F.3d at 1151-52 (discussing defendant's background). "Omar Argueta-Rosales was born in Mexico in 1981." Id. at 1151. His mother left for California when Argueta-Rosales was only five. Id. When Argueta-Rosales was nine years old. he left for the United States to join "his mother in Los, Angeles, California." Id. at 1151-52.

(7.) Id. at 1152 (stating Argueta-Rosales' removal from United States). Argueta-Rosales lived with his mother in Los Angeles for six years before "an immigration judge ordered [he be] removed [from the United States] in 2006." Id. The facts do not state why Argueta-Rosales was removed from the United States in 2006. Id.

(8.) Id. (describing Argueta-Rosales's illegal attempt to reenter United States in 2010). "In 2010, Argueta[-Rosales] was apprehended" for illegally trying to enter the United States. Id. Argueta-Rosales was in direct violation of [section] 1326, meaning that since he was removed from the United States, he was subject to harsher restrictions for reentering the United States at a later point in time. Id. Argueta-Rosales received a five-year probationary period as a result of his actions. Id. The terms of his sentence were that he "shall not commit another federal, state, or local crime." Id.

(9.) United States v. Argueta-Rosales, 819 F.3d 1149, 1152 (9th Cir. 2016) (highlighting Argueta-Rosales' drug abuse following removal from United States). The record indicates that Argueta-Rosales started abusing methamphetamines following his removal from California in 2006. Id.

(10.) Id. (describing Argueta-Rosales' illegal attempt to reenter United States for appeal in question). In 2013, Argueta-Rosales attempted to enter the United States but did not do so through the proper venues. Id. Instead of entering through the designated point of entry in San Ysidro, California, he entered nearly two miles west of it. Id. Argueta-Rosales climbed over the initial ten-foot fence and landed in the United States. Id. While there are two fences, a primary and secondary, Argueta-Rosales was spotted by Border Patrol Agent Oscar Alvarado before he could jump over the secondary fence. Id. Agent Alvarado noted that the defendant was walking at a normal pace. Id. Agent Alvarado was unable to apprehend Argueta-Rosales so he phoned in Border Patrol Agent Schwinn to intercept him. Id.

(11.) Id. at 1152-56 (detailing Agent Schwinn's interaction with Argueta-Rosales). Agent Schwinn yelled "[h]ey" at Argueta-Rosales to catch his attention and he failed to respond. Id. at 1152. Since he did not respond, "Agent Schwinn approached Argueta." Id. In Spanish, Schwinn "asked Argueta what country he was a citizen of, and he said Mexico, so Schwinn proceeded to ask him if he had any immigration documents allowing him to enter the United States, and he said no." Id. Schwinn instructed Argueta-Rosales to head back to Mexico. Id.

(12.) Id. (detailing events leading up to Argueta-Rosales' arrest). Id. Argueta-Rosales denied Schwinn's request. Id. Schwinn told Argueta-Rosales he was being placed under arrest and he responded "something to the effect of 'you do what you got to do.'" Id. The Court stated that official restraint extends to all government officials, but at no point did Argueta-Rosales specify that he wanted to be placed under restraint of the border patrol officials willingly. Id. at 1155-56.

(13.) Id. at 1152-53 (characterizing Argueta-Rosales' interview with border patrol agents). Two hours following Argueta-Rosales' arrest, he was "interviewed at the Imperial Beach Border Patrol Station [located] in San Diego, [California]" inside his cell. Id. at 1152. "Early in the interview, Argueta[-Rosales]" was "calm and rational." Id. He "asked to make a statement" he determined to be important because it would illuminate what happened to him at his house. Id. at 1153. Argueta-Rosales was told that "he would be able to make a statement later." Id. Questions ensued about the time frame of Argueta-Rosales' time spent in the United States and where his current destination was. Id. Agents then asked Argueta-Rosales if he had any "fear of persecution or torture should you be removed from the United States?" Id. He responded "Yes, I do" but the agents failed to follow up on the claim. Id. Towards the latter part of the interview, Argueta-Rosales became delusional for what agents believed to be approximately two minutes. Id.

(14.) Id. (summarizing Argueta-Rosales' delusional statements during interview). The only people present in the cell during the interview process were Argueta-Rosales and two border patrol agents. Id. He began referring to people in his cell that were not there. Id. Argueta-Rosales began to describe interactions with a "skinny guy" and "one with white shorts" who were giving him a hard time about his wife. Id. He also emphasized that people were after him and it was possible that these people in his cell were them. Id.

(15.) United States v. Argueta-Rosales, 819 F.3d 1149, 1153 (9th Cir. 2016) (asserting outcome of lower Court's decision). In February of 2014, Argueta-Rosales was charged for "violating the terms of his 2011 probation" sentence. Id. He was also charged for being in direct violation of the Reentry of removed aliens statute or, 8 U.S.C. [section] 1326. Id.

(16.) See id. at 1154 (discussing elements of illegal reentry under 8 U.S.C. [section] 1326). A defendant is determined to have illegally entered the country if:
   (1) [he] had the purpose, i.e., conscious desire, to reenter the
   United States without the express consent of the Attorney General;
   (2) [he] committed an overt act that was a substantial step towards
   reentering without that consent; (3) [he] was not a citizen of the
   United States; (4) [he] had previously been lawfully denied
   admission, excluded, deported or removed from the United States;
   and (5) the Attorney General had not consented to [his] attempted
   reentry.


Id. The lower court determined that the first element was the only one subject in review to this case. Id. The Court rejected Argueta-Rosales' argument that his intent was to enter the United States to turn himself in, which ultimately would not violate the requirements of 8 U.S.C. [section]1326. Id. It held that the intent element of the crime was satisfied when he jumped over the fence and knew that it was wrong. Id. There fore, his intent was to enter "free from official restraint," which directly violates 8 U.S.C. [section]1326. Id.

(17.) See id. at 1152-54 (outlining Dr. Yanofsky diagnosis of Argueta-Rosales). A few days prior to this appeal, "[Argueta-Rosales] was beaten up by gang members in Mexico." Id. at 1152. As the days passed and the drug use continued, Argueta-Rosales became "increasingly paranoid that ... [some people] were following him" and he became "really concerned about his life." Id. Dr. Yanofsky was a Court appointed psychiatrist tasked with the duty of performing an evaluation on Argueta-Rosales prior to trial. Id. Yanofksy testified that Argueta-Rosales was "suffering from a substance-induced psychosis caused by heavy methamphetamine use." Id. at 1154. Additionally, he mentions that "[Argueta-Rosales] was living out on the streets, running around until he got to the point where he felt that his life was in danger." Id. at 1152. Prior to this interaction, Argueta-Rosales told him that at the time leading up to his apprehension "he was trying to call for help, he was calling 9-1-1 repeatedly because he wanted law enforcement to intervene ... [s]o in this state of panic, paranoia ... he ended up in the border." Id. Argueta-Rosales did not have a phone on him "at the time of his arrest." Id. The government provided their own expert, Dr. Mark Kalish, who disagreed with Yanofsky's conclusion. Id. at 1154 (examining defense counsel's argument combatting government's claims). Argueta-Rosales' defense counsel argued that since the defendant was in fear for his life and crossed over to the United States to be placed into official custody solely to protect himself, he did not violate the [section] 1326's intent requirement. Id. He argued that Argueta-Rosales was not guilty because he did not enter to be "free from official restraint" but rather that the evidence shows that he entered for the purposes of finding protection. Id. Defense counsel argued that if Argueta-Rosales did have any specific intention to enter the United States, it predicated solely on being placed into custody. Id. Defense counsel maintained that precedent within the Ninth Circuit supports the idea that "if someone specifically intends to enter the United States to go into custody, they're affirmatively not guilty under the attempted reentry charge of [[section]] 1326." Id. (citing Lombera-Valdovinos, 429 F.3d at 931).

(18.) Id. at 1154 (describing lower Court's decision). Argueta-Rosales was sentenced to "21 months in custody on the attempted illegal reentry conviction and an additional 12 months in custody on the probation violation, ... followed by three years of supervised release." Id. at 1154-55.

(19.) See id. at 1156-57 (illustrating Argueta-Rosales did not enter country "free from official restraint"). The Ninth Circuit determined that Argueta-Rosales did not desire to enter the United States "free from official restraint," but rather to turning himself in. Id. at 1156. The Court said the fact that the defendant entered the United States during the daytime, in a heavily guarded area and that the defendant tried to call 9-1-1 several times before crossing over into the United States, therefore it was reasonable to support the position that he did enter the United States to be placed into the protection of officers. Id. at 1156-57. The Court also determined that the defendant could have been confused by the border officer's questions given his state of inebriation. Id. at 1158. The Court said that the government did not prove beyond a reasonable doubt that the defendant desired to enter the country "free from official restraint." Id.

(20.) See Ingrid V. Eagly, Prosecuting Immigration, 104 Nw. U.L. Rev. 1281, 1297 (2010) (discussing legislative history related to previously removed aliens). The goal with all legislation related to aliens is not to prosecute them harshly but rather to use removal as a remedy. Id. A Congressman made the analogy that under immigration law, we should treat aliens as "good [men], entitled to sympathy, [who] should be given citizenship and the privilege of bringing in his relatives." Id. at 1297-98. There used to be a distinction between punishment and screening. Id. at 1297. This was a way for government officials to monitor the actions of aliens with a previous criminal history while at the same time not being too harsh. Id. This would be the philosophy of lawmakers until the 1990s, where the country saw an increase in criminal immigrant prosecution. Id. at 1298. This shift was predicated on the idea within society that lawmakers were being too lenient on these offenders, particularly smugglers, who continually sought to take advantage of our lenient and neighborly system. Id.

(21.) See David C. Koelsch, Embracing Mercy: Rehabilitation as a Means to Fairly and Efficiently Address Immigration Violations, 8 Intercultural Hum. Rts. L. Rev. 323, 343 (2013) (highlighting ramp up of criminal charges against previously removed aliens). Before the year 2000, violations of 8 U.S.C. [section] 1326 were rarely prosecuted. Id. at 343. "Illegal reentry is now [one of] the most common criminal charge[s] brought by federal prosecutors [under [section] 1326]." Id. Initially the reasoning behind this is that an alien's removal could have been based on numerous different things, but once lawmakers saw the continually changing, more criminal nature of the aliens attempting to reenter the United States, they decided that a change was necessary. Id. Where nearly twenty-five percent of aliens during the early 2000s were removed due to non-criminal related offenses, the government saw an increase in repeat and criminal offenders, which rose to ninety-two percent in 2016. Id. at 344. An issue does remain with immigration law and criminal law, in that people may be characterized incorrectly. Id. Therefore, these harsher penalties could be unwarranted for people who were unfairly characterized under immigration law. Id.
   Under state and federal criminal laws, there is a significant
   difference between the punishment meted out to a drug manufacturer
   or dealer and the possessor of a small amount of illegal drugs.
   Immigration law does not differentiate between such conduct and,
   instead, lumps anyone with a drug conviction into the same category
   of persons removed due to "dangerous drug" convictions.


Id. See U.S. Department of Homeland Security, Immigration Enforcement Actions 2016, available at https://www.dhs.gov/sites/default/files/publications/ DHS%20 Immigration%20Enforcement%202016.pdf (discussing statistics related to aliens removed during 2016). The document cites that the purpose of this enforcement is to protect people within the United States from those who pose a threat to public safety and national security. Id. Additionally, "the priorities also focus on forward-looking efforts to further reduce unlawful migration by targeting recent border crossers and those who significantly abuse the visa system." Id. See also Immigration and Nationality Act of 1952 (codified as 8 U.S.C. [section]1101 and amended throughout different sections of 8 U.S.C.). The language of the statute is derived from the Act which states: any person
   "denied admission, excluded, deported, or removed or has departed
   the United States while an order of exclusion, deportation, or
   removal is outstanding" and "enters, attempts to enter, or is at
   any time found in, the United States" is guilty of a felony and
   shall be fined, imprisoned for up to two years, or both.


Id.

(22.) See Eagly, supra note 20, at 1298-99 (highlighting shift away from criminal immunity for immigrants). As a matter of public policy, the United States Attorney for the Southern District of California led the charge to institute change away from offering immigrants criminal immunity. Id. at 1298. While immigration law was used to screen illegal immigrants, government officials "reserved criminal law to punish the 'worst of the worst."' Id. Therefore, immigration law was much more courteous to previously removed aliens; they never felt that criminal prosecution was even a possibility for them. Id. Some argue that this new mindset of criminal law overlaps with the screening process that should be exclusively reserved for immigration law. Id. at 1298-99. See also United States v. Hernandez-Guerrero, 147 F.3d 1075 (9th Cir. 1998) (discussing Court's shift away from sympathy for previously criminally charged aliens). The defendant, Hernandez-Guerrero, was intercepted by border agents in California and admitted to the border agents that he "entered the United States illegally." Id. at 1076. The defendant was "deported from the United States seven times" before the arrest in question and was charged with "ten misdemeanor and felony convictions." Id. The defendant claimed that the Congress did not have the authority to regulate immigration through criminal law. Id. The Court found that the ability for Congress to enact such legislation to control, '"prohibit or regulate' the influx of aliens." Id. at 1077. Both civilly and criminally, Congress has the authority to curtail immigration. Id.

(23.) See Eagly, supra note 20, at 1298-99 (discussing change in federal prosecutors' mindset about previously removed aliens). The shift away from leniency was led by the United States Attorney's Office in the Southern District of California, as they were particularly concerned about the recurring offenders and smugglers that they were continually catching. Id. at 1298. See also Alan D. Bersin & Judith S. Feigin, The Rule of Law at the Margin: Reinventing Prosecution Policy in the Southern District of California, 12 Geo. Immigr. L.J. 285 (1998) (discussing necessity towards criminal prosecution for previously removed aliens in Southern District of California). As time progressed, California became the major point of entry for drug suppliers in the United States.
   Analyzing information supplied by DEA, U.S. Customs Service, and
   the FBI, it became apparent that the principal narcotic smuggling
   routes into the United States had shifted over the past few years,
   from the Southeast Coast to the Southwest Border. Where drug
   cartels previously had used the air and waterways to transport
   cocaine from South America to Florida, much of the cocaine being
   smuggled into the country today is flown into Mexico from Colombia
   and then transported overland Into the United States. Up to 70
   percent of the cocaine smuggled into the United States now comes
   through Mexico and more than half the cocaine seized in the United
   States is seized along the Southwest Border. In 1994, approximately
   90 percent of all cocaine seized along the Southwest Border was
   seized in California--a 20 percent increase over 1993. In fact,
   various areas of Imperial County, specifically along the
   Mexicali/Calexico border, had become "The Cocaine Corridor,"
   serving as the drug cartels' shipment route of choice. At the same
   time, heroin, marijuana, methamphetamine and various precursor
   chemicals increasingly are being imported from Mexico into the
   United States through this and other border corridors. Id. at
   289-90. The reason why the shift from Florida to California
   occurred is because of an increase of enforcement by both
   legislation and police presence. Id. at 290. California believes
   that under a stricter regime, they will preclude and deter these
   individuals from trying to reenter the country. Id.


(24.) See United States Immigrations and Customs Enforcement, FY 2016 ICE Immigration Removals (2016) available at https://www.ice.gov/removal-statistics/ 2016 #wcm-survey-target-id (providing statistics for immigration removals in 2016). Immigrations and Customs Enforcement, or ICE, along with the United States Customs and Border Protection, is responsible for enforcing the United States' immigration laws. Id. From 2011, the amount of border removals of aliens with criminal records increased from sixty-seven percent to ninety-two percent in 2016. Id. This amount was a two-percent increase from 2015. Id.

(25.) See 8 U.S.C. [section] 1326 (1952) (setting forth requirements for legal reentry of previously removed alien for criminal purposes). The statute states, that any alien that was previously removed from the United States for whatever reason and "enters, attempts to enter, or is at any time found in, the United States, unless ... unless such alien shall establish that he was not required to obtain such advance consent [of Attorney General] under this or any prior Act, shall be fined [under Title 18] or imprisoned not more than two years." Id.

(26.) 212 F.3d 1162, 1162 (9th Cir. 2000) (discussing issue of case).

(27.) See id. (illustrating requirements of being "free from official restraint"). "[The defendant] was deported from the United States in ... 1998." Id. at 1162. Just two days later, the defendant was apprehended trying to reenter the United States illegally. Id. The defendant, along with his two companions jumped over the fence at the California-Mexico border and was caught after being chased down by border Agent Dionicio Delgado. Id. He admitted to the crime, but claimed that he was never "free from official restraint." Id. The Southern District of California disregarded Pacheco-Medina's claim that he was never "free from official restraint," and he timely appealed the decision. Id. The Court held that the idea of being "free from official restraint" is incredibly broad and could occur in a myriad of different ways. Id. This restraint could "take the form of surveillance, unbeknownst to the alien." Id. at 1164. Being "free from official restraint" is not limited to being in physical apprehension, like in this case where surveillance was enough to prevent the defendant from being "free from official restraint." Id. If the defendant in any way is exercising "[his] free will, youthful enterprise, and physical agility in evading fixed physical barriers in accomplishing his entry" then he is "free from official restraint." Id. In the Court's reasoning, they asserted that the actions of the government precluded the defendant from exercising his free will because the defendant was surveilled by cameras prior to his physical presence in the United States. Id. at 1165. Therefore, the defendant was not "free from official restraint." Id.

(28.) See id. at 1162-63 (asserting facts of case).

(29.) See id. at 1162 (offering rationale for scenarios where party is "free from official restraint"). See also United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989) (discussing alternative qualifications for a party to meet the requirements of "free from official restraint"). In Aguilar, the defendants were charged with illegally "smuggling a Salvadoran family across the [California-] Mexico border." Id. at 668. The defendants were stopped prior to their physical presence in the United States. Id. at 669-70. The District Court for Arizona found for the defendants, asserting that they were never "free from official restraint." Id. at 681. The government appealed the decision of the lower court and the Ninth Circuit Court of Appeals found that the defendants were not "free from official restraint" because they were placed in the custody of the border patrol agents and never had the ability to exercise their free will. Id. at 682. The Court held that "[i]llegal aliens who technically have crossed the international border but are in the constructive custody of immigration authorities at that time are not said to have entered the United States. Continuous surveillance by immigration authorities can be sufficient to place an alien under official restraint." Id. at 681.

(30.) See Pacheco-Medina, 212 F.3d at 1164-65 (highlighting determinative test in determining when party from "free from official restraint"). An individual is not considered to be "free from official restraint" when "at no instant up until the moment of his arrest under any type of official restraint, but to the contrary was exercising his free will, youthful enterprise, and physical agility in evading fixed physical barriers in accomplishing his entry." Id. at 1164. Not only must an alien be "free from official restraint," they must do so "at all times during and following entry." Id. at 1165. They must be incapable of exercising their free will and "lack the freedom to go at large and mix with the population." Id. at 1164.

(31.) See Jason D. Anton, Defining "Found In": Constructive Discovery and The Crime of Illegal Reentry, 113 Colum. L. Rev. 1239, 1275 (2013) (stating intent requirement to satisfy statute). The legal fiction of "entry" can be established only if the defendant has the requisite intent to enter the country "free from official restraint." Id. at 1240. The concept of "entry" has evolved judicially throughout the years. Id. To fully to qualify for a judgment under [section] 1326, an alien must have the intent to enter "free from official restraint" otherwise, they will be treated as they have never entered the United States at all. Id. Meaning that entry, for purposes of the statute, has not legally occurred unless the previously removed alien has some intention to enter the United States "free from official restraint." Generally, "official restraint" is an idea that was preserved for border patrol agents near the border. Id.

(32.) See United States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir. 2000) (discussing legal fiction of entry under the statute). Under this legal fiction, an immigrant is not determined to have entered the United States until they have the requisite intent. Id. at 448. The government must establish that the alien wanted to enter the United States "free from official restraint" in order to satisfy the legal fiction under the statute. Id. "Mere physical presence" is insufficient to support the idea that the alien wanted to enter the United States "free from official restraint." Id. The precedent within the Ninth Circuit "requires that we construe restraint broadly to include constant government surveillance of an alien, regardless of whether the alien was aware of the surveillance or intended to evade inspection." Id. See, e.g., Pacheco-Medina, 212 F.3d at 1163 (discussing legal fiction of entry under the statute). A party cannot satisfy the legal fiction of "entry" until they have the sole intent to enter the United States "free from official restraint." Id.

(33.) Parga-Rosas, 238 F.3d at 1212 (9th Cir. 2001).

(34.) See Parga-Rosas, 238 F.3d at 1211-13 (demonstrating how party can satisfy intent requirement under statute). In Parga-Rosas, the defendant was deported from the United States on October 14, 1998. Id. at 1211. The defendant was living at an apartment complex in Chula Vista, California when he was asked by an agent executing a warrant in his complex for identification. Id. The defendant produced a photocopy of a green card issued in his name and after the agent phoned in the information to headquarters, the agent discovered that he was previously removed from the United States. Id. As the conversation progressed, the defendant finally admitted that he was a citizen of Mexico illegally in the United States. Id. The Southern District of California found that the defendant did satisfy the intent requirement of being "free from official restraint" because he was exercising his free will in California. Id. The defendant appealed the decision of the lower Court and the Ninth Circuit Court of Appeals found that the defendant did satisfy the presence requirement of the statute because he was in the United States with the ability to merge with the general population. Id. at 1213. The Court stated that it was not a crime "being found [withjin the United States," but it was a crime, being a previously removed alien, to enter solely to be "free from official restraint." Id. If the alien in question does not possess this requisite intent, he could not be prosecuted because he "is to be regarded as if he had been stopped at the limit of [the United States'] jurisdiction." Id. (citing United States v. Ju Toy, 198 U.S. 253, 263 (1905)).

(35.) See id. at 1211-12 (asserting facts of case).

(36.) See Parga-Rosas, 238 F.3d at 1213-14 (highlighting mere physical presence insufficient to charge alien under [section] 1326). The Court determined "even though it need not be pled, 'entry' may nevertheless become an important element of proof that an alien has been 'found in' the United States in some cases, primarily those involving an apprehension at the border." Id. at 1213. The crime stems from being "found in" the United States illegally; one cannot be guilty of a crime if they are not considered to be present in the United States for purposes of the statute and completes the crime. Id. at 1214. The government must specifically allege that the defendant was "found in" the United States, otherwise they are unable to bring criminal charges against the defendant. Id. Furthermore, it is irrelevant whether there is substantial evidence supporting the idea that the defendant entered the United States voluntarily, there is an inference that the defendant did enter the United States voluntarily. Id. To dispel this notion, the defendant must prove that some sort of involuntary entry took place. Id.

(37.) 819 F.3d 1149 (9th Cir. 2016).

(38.) See Argueta-Rosales, 819 F.3d at 1154-56 (articulating primary issues of case).

(39.) See Argueta-Rosales, 819 F.3d at 1155-57 (setting forth reasoning for specific intent analysis). "Illegal reentry under [[section] 1326]" is a specific intent crime that requires the defendant to enter the United States "free from official restraint," meaning that the defendant entered the country without the consent of the Attorney General. Id. at 1155. To be "free from official restraint" means the defendant entered the United States to be free to "mix it up" with the population without losing some aspect of their freedom. Id. The court concluded that "official restraint" is not limited to Department of Homeland Security officials, but all government officials. Id. The mere fact that Argueta crossed the border into the United States is not sufficient to prove that he wanted to enter the United States "free from official restraint." Id. at 1156. The government had to prove that the defendant's only purpose of entering the United States was to be "free from official restraint," "move freely within the country and [have the ability to] mix it up with the population." Id. at 1157.

(40.) See id. at 1155 (stating requirements to "enter" the United States under statute). The Court held that the physical presence of an individual is insufficient to prove a conviction under [section] 1326. Id. at 1155. To "enter" the United States under [section] 1326, a defendant's physical presence in the United States must be coupled with the requisite intent, being to enter "free from official restraint," and only then is the defendant deemed to have "entered" the United States for purposes of a [section] 1326 conviction. Id. The Gracidas-Ulibarry court distinguished that it must be a conscious decision by the defendant to enter the United States without the appropriate consent. Id.

(41.) See id. at 1157 (outlining burden of proof requirements for government with contradictory evidence of intent). The Court in Arguenta-Rosales emphasized while the statute requires that "the defendant's sole intent" to be entering the United States "free from official restraint," but that the government needs to prove "only that Argueta had a specific intent to enter the United States free from official restraint, not that this was his only purpose." Id. If the defendant had "multiple intentions" it does not mean there was insufficient evidence of the requisite statutory intent. Id. As long as the defendant has some intention required by the statute, it is immaterial if he possessed some other intent at the time of apprehension. Id. The court also noted that "if Argueta 'actually intended to sneak into the country,'" but at the time of his apprehension decided to change his plans, he would still be guilty. Id.

(42.) See id. at 1157-58 (stating holding of case). The Court found that the defendant did not possess the intent to enter the United States to be "free from official restraint." Id. at 1157.

(43.) See id. at 1158 (illustrating facts and circumstances evidencing defendant's intent). The court looked at several factors leading up to the defendant's arrest, along with his drug-induced state of mind. Id. The court looked at discredited testimony by the district court as well as surrounding facts and circumstances to disproved the government's contention that the defendant entered the United States to be "free from official restraint." Id.
   Argueta crossed into the United States in broad daylight in a
   heavily patrolled area. When Agent Alvarado spotted him on the
   United States side of the primary fence, he was walking normally,
   not running. When he was confronted by Agent Schwinn, Argueta did
   not run. When Agent Schwinn offered Argueta the opportunity to
   climb the fence back into Mexico rather than being arrested,
   Argueta declined the offer--evidence fully consistent with
   Argueta's contention that he crossed into the United States to
   enter protective custody. Dr. Yanofsky testified Argueta was under
   a drug-induced psychosis, suffering from delusions, and had entered
   the United States to seek protection, testimony the district court
   credited. Argueta told Dr. Yanofsky he made numerous calls to 9-1-1
   before reaching the United States border in a further attempt to
   obtain protection from United States authorities (although no phone
   was found on Argueta's person when he was arrested). In his
   post-arrest interview, Argueta referred to people chasing him and
   said he was in fear of persecution and torture; and Argueta's
   bizarre behavior at the post-arrest interview confirmed his
   delusional state. Although Argueta did not cross at the port of
   entry, the district court found this was consistent with Argueta's
   perceptions of an immediate threat to this life. Although Argueta
   told the agents his destination was Los Angeles, he could have
   easily misunderstood this question in context as referring to his
   earlier crossing into the United States. Id. at 1159.


(44.) See id. (illustrating facts and circumstances evidencing defendant's fear for his life). The court determined that the defendant's lackluster efforts to avoid border police strongly evidenced his intent that he did enter the United States only to be imprisoned. Id. The court acknowledged certain facts and circumstances provide evidence to prove that the defendant did enter the United States to be "free from official restraint." Id.
   He scaled a border fence in an area in which, according to one
   border patrol agent's testimony, there was a 5050 chance of evading
   detection. If he had wanted to turn himself in, he could have
   presented himself at the port of entry located less than two miles
   away. When he crossed into the United States, Argueta was walking
   away from Agent Alvarado rather than toward him. When Agent Schwinn
   first shouted to Argueta, he did not stop. In his initial encounter
   with Agent Schwinn, Argueta did not say he was seeking protective
   custody. When asked his destination during his post-arrest
   interview, Argueta identified Los Angeles.


Id. at 1157. The Court held that it was not clear whether or not the defendant entered the United States to be "free from official restraint," but determined that the government failed to clearly prove beyond a reasonable doubt that the defendant did possess the requisite intent. Id. The court heavily relied on the precedent of Lombera-Valdovinos in its decision. Id. See also Lombera-Valdovinos, 429 F.3d at 928, 933 (highlighting Ninth Circuit's requirements and burdens of proof to prosecute under 8 U.S.C. [section] 1326). In Lombera-Valdovinos, the defendant was spotted by border patrol agents and upon his apprehension, immediately asked the border patrol officer to see an immigration judge and "that he 'wished to go back to jail.'" Id. The court found that the defendant never entered the United States for purposes of being "free from official restraint." Id. Additionally, the court expanded official restraint to all government officials and not just officials of the Department of Homeland Security. Id. at 929. The court found that the government did not only have to prove that the defendant knew he was crossing into the United States and knew he did not have permission to do so but they also had to prove beyond a reasonable doubt that he possessed the intent to enter the United States "free from official restraint." Id. at 933. See Argueta-Rosales, 819 F.3d at 1154-56 (emphasizing facts leading to Argueta-Rosales' arrest).

(45.) See Argueta-Rosales, 819 F.3d at 1170-71 (outlining potential far-reaching ramifications of decision). The dissent sees the potential limitations that this decision may have. Id. at 1170. Circuit Judge Jay S. Bybee is concerned about how "an alien who--like Argueta-Rosales--acts in ways that strongly suggest his desire to enter the country free from official restraint can assert, if he is apprehended, that he wants to go to jail and thereby claim the protection of Lombera-Valdovinos." Id. Circuit Judge Bybee claims that Lombera-Valdovinos was incorrectly decided and that "official restraint" should be limited to authorities by the border. Id. Under the law set forth by Lombera-Valdovinos, Circuit Judge Bybee finds a dilemma in that:
   [a]liens 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 the
   majority's regime, no one gets what he wants, but some people go to
   jail, while everyone else goes home.


Id. at 1171.

(46.) See id. at 1161 (citing primary holding of case).

(47.) See Geyer, supra note 2, at 591-94 (illustrating how an individual is "free from official restraint"). See also Thomas, supra note 2, at 505 (describing history and purpose of official restraint). The purpose of "official restraint" is to distinguish between aliens stopped at the border and aliens stopped within the United States. Id. at 505. It was a term used exclusively by members of Department of Homeland Security. Id. For one reason or another, these previously removed aliens were deported from the United States for a reason. Id. The purpose of requiring the authorization of the Attorney General is to protect United States citizens from aliens with a criminal record. Id.

(48.) See Anton, supra note 31, at 1239-43 (discussing ambiguity with statute and what it means to "enter" United States). See also supra note 1 and accompanying text (discussing applicability of official restraint under certain circumstances). The purpose of having the concept of official restraint limited to officials working for the Department of Homeland Security was to distinguish when an alien was apprehended within the boundary of the United States or at designated border zones. Id. With the exception of a few cases decided in the Ninth Circuit in the past decade, this standard of "official restraint" was upheld, but cases like Lombera-Valdovinos and Argueta-Rosales expand the idea of official restraint to a point beyond comprehension. Id. By claiming that an immigrant wanted to be placed under restraint by any government official, even in a federal prison in any state, they can claim this defense and be safeguarded from prosecution under [section] 1326. Id. See United States v. Hernandez-Herrera, 273 F.3d 1213, 1218 (9th Cir. 2001). See also Thomas, supra note 2 (illustrating modern ambiguity of law related to [section] 1326 prosecutions in Ninth Circuit). See United States v. Lombera-Valdovinos, 429 F.3d 927 (9th Cir. 2005) (outlining broad interpretation of official restraint in Ninth Circuit). The reasoning behind this mindset is "[m]any people would rather be arrested and put in a warm jail than leave the safety of 'official restraint.'" See also United States v. Hernandez-Herrera, 273 F.3d 1213, 1219 (9th Cir. 2000) (emphasizing shift towards expanding official restraint). But see Argueta-Rosales, 819 F.3d at 1166-67 (highlighting necessity of limiting "official restraint" to officials of Homeland Security). In his dissent, Circuit Judge Bybee states the distinction was made:
   to explain why we gave different due process rights to aliens who
   obtained access to the United States (lawfully or unlawfully) than
   aliens who presented themselves for admission and, technically--but
   only technically and temporarily--found themselves standing on U.S.
   soil. Pacheco-Medina said that mere surveillance (even mechanical
   surveillance) by U.S. authorities was the same "official restraint"
   as aliens experience when they present themselves at a port of
   entry


Id. This distinction is important for criminal law purposes and ultimately determines whether an alien is deported or excluded. Id. at 1167.

(49.) See supra note 39 (stating [section] 1326 conviction requires specific intent).

(50.) See supra note 44 (stating precedent Court relied on in determining whether Argueta-Rosales was "free from official restraint"). The concept of "official restraint" was a term of art restricted by physical apprehension and surveillance by border patrol agents to establish a distinction between aliens stopped at the border and aliens stopped within the United States. Id.

(51.) See Eagly, supra note 20, at 1297-99 (discussing legislative intent of statute). The legislative intent behind the statute's enactment was to distinguish punishments for the repeat violators of the statute's requirements. Id. at 1297. The statute requires that an individual, previously removed, enter the United States at the closest point of entry to appropriately enter the United States and be afforded the statute's protection. Id. The reasoning behind any alien's removal is entirely random, but the purpose of the statute is to protect United States citizens from those aliens that were deported previously for some type of criminal charges. Id. at 1298-99. See supra note 24 (ascribing statistics of removed aliens during 2000-2016); Koelsch, supra note 21, at 342-345 (demonstrating purposes behind increase of [section] 1326 prosecutions). The statute's purpose was to ensure that aliens removed, particularly those for criminal reasons, would have to go through the appropriate channels if they decided to reenter the United States. Id. at 342. Where nearly twenty-five percent of aliens during the early 2000s were removed due to non-criminal related offenses, the government saw an increase in repeat and criminal offenders, which rose to ninety-two percent in 2016. Id. Given the changing nature of the backgrounds of previously removed aliens trying to illegally reenter the United States, the government increased the amount of [section] 1326 prosecutions. Id. at 343-44. There was not a lot of case law leading up to the 2000s because the mindset amongst government officials was to afford a courtesy to these aliens. Id. at 344. Despite that, the statute's legislative intent never changed, meaning its purpose was to deter previously removed aliens from repeatedly reentering the United States illegally. Id. at 345. The priorities of the statue are to target recent border crossers and those who significantly abuse the visa system and reduce further illegal migration. Id. See also Bersin & Feigin, supra note 23, at 285-87 (describing necessity of shift and effectiveness of [section] 1326 prosecution as deterrent). But see Argueta-Rosales, 819 F.3d at 1160 (discussing Court's interpretation of statute's legislative intent). Regarding the legislative intent of [section] 1326, the Court states that they "doubt Congress intended to make criminals out of persons who, for any number of innocent reasons, approach immigration officials at the border." Id. While the Court mentions "innocent reasons" to approach the border, but fails to expand on what those reasons are and how border patrol agents can distinguish whether those "innocent reasons" are genuine or not. Id.

(52.) See Argueta-Rosales, 819 F.3d at 1157 (noting Court's development of statute's intent requirement). The Court, following the Lomberta-Valdovinos decision, determined that the defendant need not possess the sole intent of entering the United States to be "free from official restraint," but rather that his intent at the time of crossing the border was to enter the United States "free from official restraint." Id. With the expansion of this requirement, the government still has the burden of proving beyond a reasonable doubt that the alien intended to enter the United States to be "free from official restraint," but this expansion of the intent requirement gives the government a better change of obtaining a conviction. Id. See also Lombera-Valdovinos, 429 F.3d at 929 (maintaining statute's intent requirement expands beyond its literal reading).

(53.) See supra note 39 (holding "official restraint" extends to all government officials not just Department of Homeland Security). But see supra note 12 and accompanying text (describing Argueta-Rosales's arrest). While the defendant was placed under arrest of United States officials, at no point following his confrontation with border patrol Agent Schwinn did he ever specify that he entered the United States solely to be placed under restraint by any government official because he was in fear for his life. Id.

(54.) See Anton, supra note 31, at 1240-42 (opining purposes behind "official restraint" being limited to Department of Homeland Security officers). "Official restraint" is limited to officials of the Department of Homeland Security because it precludes aliens from entering the United States to never be found guilty of illegal reentry so long as they claim they entered the United States to go to jail. Id. See Argueta-Rosales, 819 F.3d at 1169 (magnifying dissent's reasoning why official restraint limited to Department of Homeland Security officials). Circuit Judge Bybee asserts that the official restraint was limited to surveillance or physical apprehension of an alien at the border and for good reason. Id. He states:
   'Official restraint,' recall, is a legal fiction used to
   distinguish between aliens who are deemed to have been stopped at
   the border and those who have reached the interior of the United
   States. This distinction does not turn on what happens to an alien
   after he gets beyond the border. An alien who ends up incarcerated
   in a federal prison has reached the interior of the United States
   no less than an alien who crosses the border undetected and then
   gads about the country at perfect liberty.


Id. Circuit Judge Bybee claims that until Lombera-Valdovinos, the idea of official restraint "had never been used to refer to all forms of confinement by any official of the U.S. government. Rather, it had always been limited to physical restraint or surveillance of an alien by a government officer operating at or just inside the border." Id. See also United States v. Gracidas-Ulibary, 212 F.3d at 1169 (rejecting idea "official restraint" extends to all government officials); see also Hernandez-Herrera, 273 F.3d at 1218 (reaffirming "official restraint" as term of art for border patrol officials). But see Argueta-Rosales, 819 F.3d at 1158 (upholding "official restraint" can extend to all government officials). See also Lombera-Valdovinos, 429 F.3d at 930 (emphasizing official restraint extends to all government officials).

(55.) See Argueta-Rosales, 819 F.3d at 1170-71 (highlighting ambiguity Argueta-Rosales decision creates in immigration law). In his dissenting opinion, Circuit Judge Bybee expresses his concerns about the law that the Argueta-Rosales case creates within the Ninth Circuit. Id. at 1170. Even if everything the defendant does leads border patrol officials to believe that he desired to enter the United States to be "free from official restraint," as long as he asserts that his desire was to enter prison, he "[can] claim the protection of Lombera-Valdovinos." Id. Circuit Judge Bybee foresees cases where the defendant's suspicious claims can be "plausible enough to give the jury reasonable doubt of their guilt, thereby allowing those defendants to 'gut the crime of attempted reentry by a play on words.'" Id. at 1171. See also Geyer, supra note 2, at 2095 (highlighting issues with legal fiction created by statute and case law). See Parga-Rosas, 238 F.3d at 1213-14 (outlining absolute standards for when alien is under "official restraint"). The court in Parga-Rosas addressed the standards for when an alien is placed under "official restraint" only when done so by members of Department of Homeland Security, which in this case was border patrol surveillance cameras. See Pacheco-Medina, 212 F.3d at 1164 (illustrating definitive criteria for when alien is under "official restraint"). The court in Pacheco-Medina claims that an individual must be placed under "official restraint" means that the individual was able to "exercise his free will, youthful enterprise, and physical agility in evading fixed physical barriers in accomplishing his entry." Id.

(56.) See Argueta-Rosales, 819 F.3d at 1157 (discussing government's rationale for expanding intent requirement). The government expands the intent requirement by operating under the presumption that those stopped at the border and lying about their intentions will not be protected under Ninth Circuit law. Id. The Court claims "if Argueta 'actually intended to sneak into the country, and changed his plans only when he was spotted' by the border patrol, he again would be guilty." Id. The Court offers no guidance on how a border patrol agent is supposed to distinguish a genuine assertion to enter the United States to be placed under restraint or factors and elements for them to prove to illustrate that the defendant was lying about his intentions Id.
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Date:Jun 22, 2017
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