                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       Nos. 14-50384
             Plaintiff-Appellee,                      14-50385

                    v.                             D.C. Nos.
                                             3:14-cr-00244-LAB-1
 OMAR ARGUETA-ROSALES,                       3:10-cr-04572-LAB-1
         Defendant-Appellant.
                                                    OPINION


         Appeal from the United States District Court
           for the Southern District of California
          Larry A. Burns, District Judge, Presiding

                    Argued and Submitted
              June 3, 2015—Pasadena, California

                         Filed April 12, 2016

    Before: Raymond C. Fisher and Jay S. Bybee, Circuit
      Judges, and Elizabeth E. Foote, District Judge.*

                 Opinion by Judge Fisher;
  Partial Concurrence and Partial Dissent by Judge Bybee




 *
   The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
2           UNITED STATES V. ARGUETA-ROSALES

                           SUMMARY**


                           Criminal Law

    The panel vacated a conviction and sentence for
attempted illegal reentry, and vacated the resulting revocation
of probation and sentence, in a case in which the defendant
presented evidence that he crossed into the United States in
a delusional state, believing he was being chased by Mexican
gangs, and with the specific intent solely to place himself into
the protective custody of United States officials.

    The panel held that the district court – which ruled that
the mens rea element of attempted illegal reentry under
8 U.S.C. § 1326 requires only that the defendant knew he was
crossing into the United States and that he was not privileged
to do so – misapplied United States v. Lombera-Valdovinos,
429 F.3d 927 (9th Cir. 2005), in which this court held that
because attempted illegal reentry is a specific intent crime
that requires proof of intent to enter the country free from
official restraint, it was impossible to convict a previously
deported alien for attempted illegal reentry when he crosses
the border with the intent only to be imprisoned.

    The panel held that the error was not harmless. The panel
clarified that where, as here, there is contradictory evidence
regarding the defendant’s intent, it is for the trier of fact to
determine whether the government has proven unlawful
intent beyond a reasonable doubt. The panel also clarified
that the government need not prove that entry free from

  **
     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. ARGUETA-ROSALES                  3

official restraint was the defendant’s sole intent. The panel
concluded that it is not clear beyond a reasonable doubt the
district court would have found the defendant guilty absent
its misapprehension of the specific intent element. The panel
remanded for proceedings consistent with this opinion.

    Judge Bybee concurred in the judgment and dissented as
to everything else. Because the district court failed to apply
the standard supplied by Lombera-Valdovinos, he concurred
in the judgment vacating the conviction and remanding for
retrial. He wrote that he is convinced, however, that
Lombera-Valdovinos was wrongly decided and that our
understanding of when an alien is “free from official
restraint” has reached an absurd position.


                        COUNSEL

Doug Keller, Federal Defenders of San Diego, Inc., San
Diego, California, for Defendant-Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division, and Francis A. DiGiacco (argued),
Assistant United States Attorney, San Diego, California, for
Plaintiff-Appellee.
4          UNITED STATES V. ARGUETA-ROSALES

                          OPINION

FISHER, Circuit Judge:

    At trial on the charge of attempted illegal reentry into the
United States, Omar Argueta-Rosales presented evidence that
he crossed into the United States in a delusional state,
believing he was being chased by Mexican gangs, and with
the specific intent solely to place himself into the protective
custody of United States officials. The district court found
this evidence plausible, but nonetheless found Argueta guilty
of the charged offense, ruling the mens rea element of
attempted illegal reentry under 8 U.S.C. § 1326 requires the
government to prove only that the defendant knew he was
crossing into the United States and that he was not privileged
to do so. In United States v. Lombera-Valdovinos, 429 F.3d
927, 928 (9th Cir. 2005), however, we held it was
“[im]possible to convict a previously deported alien for
attempted illegal reentry into the United States under 8 U.S.C.
§ 1326 when he crosses the border with the intent only to be
imprisoned . . . , because attempted illegal reentry is a
specific intent crime that requires proof of intent to enter the
country free from official restraint.” Because the district
court found Argueta guilty under an erroneous legal standard,
we vacate his conviction and remand for a new trial or other
proceedings consistent with this opinion.

                               I

    Omar Argueta-Rosales was born in Mexico in 1981.
When he was five, his mother migrated to the United States
and he was left to the care of his grandparents in Mexico. He
lived with his grandparents for four years before reuniting
with his mother in Los Angeles, California. He lived with his
          UNITED STATES V. ARGUETA-ROSALES                  5

mother in Los Angeles until he was 16 years old. An
immigration judge ordered him removed in 2006.

    In 2010, Argueta was apprehended at the border while
attempting to unlawfully return to the United States. In 2011,
he pled guilty to attempting to illegally reenter the United
States, in violation of 8 U.S.C. § 1326, and received a
sentence of five years’ probation. A standard term of his
probation provided he “shall not commit another federal,
state, or local crime.”

    After returning to Mexico, Argueta began to abuse
methamphetamine. A few days before the border crossing
that is the subject of this appeal, he was beaten by gang
members in Mexico. In the days that followed, according to
Dr. Bruce Yanofsky, the court-appointed psychologist who
testified at trial, Argueta became “increasingly paranoid, he
was worried, he started to see people that were following him
and was really concerned about his life.”

       [H]e was living out on the streets, running
       around until he got to the point where he felt
       that his life was in danger and then obviously
       . . . proceeded to try to cross the border with
       the account that he gave me that he had the
       cell phone, that it was a land line – well, it
       was connected to a line in the United States,
       he was trying to call for help, he was calling
       9-1-1 repeatedly because he wanted law
       enforcement to intervene because he had tried
       the Mexican law enforcement to help him and
       they didn’t do anything for him. So in this
       state of panic, paranoia, and just losing
6         UNITED STATES V. ARGUETA-ROSALES

       control of what was going on in his life,
       fearing for his life, he ended up in the border.

No cell phone was found on Argueta’s person at the time of
his arrest, however.

    Argueta crossed the United States border from Mexico,
about one and one-half miles west of the San Ysidro,
California, port of entry, on November 29, 2013. At the
border, Argueta climbed over the approximately 10-foot
primary fence, which placed him in the United States. He
was at that point between the primary fence and the
secondary fence, which is approximately 50 yards north of
the primary fence and about 20 feet high. Argueta was
spotted by Border Patrol Agent Oscar Alvarado when
Argueta was approximately 15 yards north of the primary
fence. Argueta was walking, at a normal speed, in a north
and westbound direction. Agent Alvarado radioed another
officer to intercept Argueta.

    Border Patrol Agent Jeffrey Schwinn responded. Agent
Schwinn approached in his vehicle to approximately 20 feet
away, exited his vehicle and shouted “Hey” to try to get
Argueta’s attention. When Argueta did not respond, Agent
Schwinn approached Argueta. Argueta turned around and
looked at Schwinn, at which point Schwinn asked him in
Spanish where he was born. Argueta said Mexico City.
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. At that point, Argueta began to walk
towards Schwinn, and Schwinn told him to head back south
and return to Mexico. When Argueta did not take that
suggestion, Agent Schwinn told him he was going to place
          UNITED STATES V. ARGUETA-ROSALES                  7

him under arrest, and Argueta said something to the effect of
“you do what you got to do.”

    About two hours after his arrest, two border patrol agents
interviewed Argueta at the Imperial Beach Border Patrol
Station in San Diego. During the beginning of the interview,
which was conducted in English, Argueta appeared calm and
rational. Early in the interview, Argueta asked to make a
statement, saying “[i]t’s important. It relates to what
happened at my house.” One of the agents told Argueta he
would be able to make a statement later. At one point during
the interview, one of the agents asked Argueta, “When did
you last enter the United States,” and this discussion
followed:

       A. Last was five years ago. Five years ago,
       almost five and a half.

       Q. How did you enter the United States?

       A. Trying to go through the line walking.

       Q. Through where?

       A. I was walking through Calexico, from
       Mexicali to Calexico.

       Q. The port of entry?

       A. Exactly.

       Q. What is your destination in the United
       States, city and state?
8         UNITED STATES V. ARGUETA-ROSALES

       A. Los Angeles, California.

       Q. Do you have any . . . fear of persecution or
       torture should you be removed from the
       United States?

       A. Yes, I do.

The agents did not follow up on Argueta’s claim of
persecution.

    Toward the end of the interview, when the agents asked
Argueta whether he wanted to say anything else, Argueta
made apparently delusional statements for two minutes,
referring to people who were in the cell with him even though
the only people there were Argueta and the two border patrol
agents:

       A. Just that I come – the people who I’m with
       right now in the tank are the people who were
       at my house.

       Q. In here in the cell?

       A. (Inaudible.) And also, I wanted to ask you
       guys if it’s coincidental or (unintelligible).
       And that’s when one of the (unintelligible)
       started asking me what’s up. I told them I
       noticed I recognize the skinny guy, the one
       they put at the end. (Unintelligible) the other
       one with white shorts (unintelligible). He
       started taking his hand out. Before that I told
       the skinny dude, hey, I know you, bro. It
       hurts me, because that’s my wife, you know.
              UNITED STATES V. ARGUETA-ROSALES                         9

              But then again, I don’t know what’s going
          on. Like I said, I was going nuts over there.
          I couldn’t remember. I had to ask my wife. I
          mean, there’s some pictures I seen. I can’t
          recognize certain people (unintelligible). I
          was going through it and not only
          (unintelligible) that’s the people that are after
          me. (Unintelligible.)

    In February 2014, Argueta was charged with attempting
to reenter the United States, in violation of 8 U.S.C. § 1326(a)
and (b).1 He was separately charged with violating the terms




 1
     Section 1326(a) states:

          (a) In general

          Subject to subsection (b) of this section, 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
          chapter or any prior Act,
10          UNITED STATES V. ARGUETA-ROSALES

of his 2011 probation. The district court appointed Dr.
Yanofsky to determine whether Argueta was competent to
stand trial. After Argueta was found competent, the case
proceeded to a bench trial. At trial, Dr. Yanofsky testified
that, on the day Argueta climbed over the border fence, he
was suffering from a substance-induced psychosis caused by
heavy methamphetamine use. According to Dr. Yanofsky,
Argueta was operating under a delusion that individuals were
chasing him and trying to kill him, prompting him to climb
over the border fence. An expert proffered by the
government, Dr. Mark Kalish, disagreed with Dr. Yanofsky’s
conclusion that Argueta was suffering from substance-
induced psychosis.

    At the close of evidence, the parties presented closing
arguments to the district court. The elements of the crime of
attempted illegal reentry under § 1326 are: “(1) the defendant
had the purpose, i.e., conscious desire, to reenter the United
States without the express consent of the Attorney General;
(2) the defendant committed an overt act that was a
substantial step towards reentering without that consent;
(3) the defendant was not a citizen of the United States;
(4) the defendant had previously been lawfully denied
admission, excluded, deported or removed from the United
States; and (5) the Attorney General had not consented to the
defendant’s attempted reentry.” United States v. Gracidas-
Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc).




        shall be fined under Title 18, or imprisoned not more
        than 2 years, or both.

Section 1326(b) provides enhanced penalties for certain defendants.
           UNITED STATES V. ARGUETA-ROSALES                  11

    Here, only the first element was in dispute. Relying on
United States v. Lombera-Valdovinos, 429 F.3d 927 (9th Cir.
2005), Argueta’s counsel argued “the government cannot
prove specific intent beyond a reasonable doubt because the
evidence in this case showed that Mr. Argueta entered the
United States under the psychotic belief that he was being
chased by armed gunmen in Mexico, but he specifically –
while that may be the motive, he specifically intended to
enter to find protection” by turning himself in to the border
patrol. According to Argueta’s counsel, Argueta was not
guilty of the crime of attempted illegal reentry if the evidence
showed that his “specific intent . . . was to go into custody.”
Counsel maintained that, under Lombera-Valdovinos, “if
someone specifically intends to enter the United States to go
into custody, they’re affirmatively not guilty under the
attempted reentry charge of [§] 1326.”

     The district court rejected Argueta’s argument. In the
court’s view, the specific intent element of attempted illegal
entry would be satisfied so long as Argueta “knew he was
vaulting the fence into the United States and he knew that that
was wrong.” The court rejected the proposition that Argueta
could negate the specific intent element merely by showing
he intended to enter into custody, disagreeing with Argueta’s
argument that “the reason of coming over here to turn
yourself in is enough to defeat conscious purpose.”
According to the court, if the defense was “right that the
desire to turn yourself in, even if it’s based on a delusion, is
enough to defeat conscious purpose, the appellate court will
tell us. I don’t think it is.”

    Having rejected Argueta’s legal argument, the court
proceeded to find the specific intent element proven beyond
a reasonable doubt because Argueta (1) knew he was crossing
12         UNITED STATES V. ARGUETA-ROSALES

into the United States and (2) knew he did not have
permission to do so, facts Argueta did not dispute.
Accordingly, the court found Argueta guilty of the crime of
attempted illegal reentry. In addition, solely on the basis of
that conviction, the court also found Argueta guilty of
violating the terms of his 2011 probation. The court later
sentenced Argueta to 21 months in custody on the attempted
illegal reentry conviction and an additional 12 months in
custody on the probation violation, to be followed by three
years of supervised release. Argueta timely appealed both
judgments, and the two appeals have been consolidated in this
court.

                               II

    Conclusions of law following a bench trial are reviewed
de novo. See Oswalt v. Resolute Indus., Inc., 642 F.3d 856,
859 (9th Cir. 2011); cf. United States v. Knapp, 120 F.3d 928,
930 (9th Cir. 1997) (“If a jury instruction misstates elements
of a statutory crime, the standard of review is . . . de novo.”).

                               III

                               A

     This case is controlled by Lombera-Valdovinos, where we
held it was “[im]possible to convict a previously deported
alien for attempted illegal reentry into the United States under
8 U.S.C. § 1326 when he crosses the border with the intent
only to be imprisoned . . . , because attempted illegal reentry
is a specific intent crime that requires proof of intent to enter
the country free from official restraint.” 429 F.3d at 928.
          UNITED STATES V. ARGUETA-ROSALES                  13

     In Lombera-Valdovinos, a border patrol agent was
patrolling the border between the United States and Mexico,
sitting in a marked border patrol vehicle between the primary
fence, which marks the actual border, and the secondary
fence, located about 100 feet north of the primary fence. See
id. With binoculars, the agent saw the defendant and four or
five others standing on the Mexico side of the border, about
200 yards away from the agent. See id. The agent then
looked away for about 15 seconds; when he turned back, he
saw the defendant, alone and now on the United States side
of the primary fence, walking directly toward him. See id.
When the defendant continued to walk toward the agent, the
agent drove toward him. See id. When they met, the
defendant stated, “I want to see an immigration judge,”
admitted to being a citizen of Mexico and, when asked if he
had any legal basis for being present in the United States,
answered “No.” Id. He also said he “wished to go back to
jail.” Id. The agent then searched and arrested the defendant.
See id.

   Because the defendant had been deported before, he was
charged with attempted illegal reentry, in violation of § 1326.
See id. After a jury returned a guilty verdict, the defendant
moved for judgment of acquittal under Federal Rule of
Criminal Procedure 29. See id. at 927–28. The district court
denied the motion, and the defendant appealed. See id.
Reviewing the evidence in the light most favorable to the
government, we held that no rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. See id. at 930.

    We explained that, “for purposes of § 1326, ‘enter’ has a
narrower meaning than its colloquial usage.” Id. at 928. “An
alien has not entered the United States under § 1326 unless he
14           UNITED STATES V. ARGUETA-ROSALES

does so ‘free from official restraint.’” Id. (quoting Gracidas-
Ulibarry, 231 F.3d at 1191 n.3). Attempted illegal reentry, in
turn, “requires proof of specific intent, more particularly the
specific intent ‘to reenter without consent.’” Id. at 929
(citation omitted) (quoting United States v. Leos-Maldonado,
302 F.3d 1061, 1063 (9th Cir. 2002)). Official restraint, we
further explained, “encompasses restraint by any government
official,” not just officials of the Department of Homeland
Security. Id.2 Because all of the evidence showed “the
defendant’s intent was to be taken into custody,” id. at 930
n.3, we held that “no rational trier of fact could conclude . . .
the defendant was guilty of the specific intent crime of
attempted illegal reentry,” id. at 930.

   As the government now concedes, the district court
misapplied Lombera-Valdovinos here.3 In order to convict
Argueta, the government was required to prove beyond a


   2
     At trial in Lombera-Valdovinos, the government argued “official
restraint” encompassed only restraint by officials of the Department of
Homeland Security (DHS), not other forms of official custody. See
429 F.3d at 929–30. In the government’s view, if the defendant crossed
into the United States with the intent to go to jail, then he had the specific
intent to enter free from official restraint. See id. at 929. We rejected that
argument in Lombera-Valdovinos, see id. at 929–30, and the government
does not reassert it here. Indeed, the government conceded the point on
appeal in Lombera-Valdovinos. See id. at 929.
  3
    Although the government on appeal has conceded the district court
misapplied Lombera-Valdovinos, government counsel said nothing in the
district court while Argueta’s counsel and the court debated the proper
legal standard. Had the government pointed out at that time that Argueta
was articulating the correct legal standard for the specific intent element
of attempted illegal reentry, the court might have reached a verdict free
from legal error. The government’s failure to so advise the court at that
time is regrettable.
           UNITED STATES V. ARGUETA-ROSALES                   15

reasonable doubt that Argueta crossed into the United States
with the specific “intent to enter the country free from official
restraint.” Id. at 928. It was not sufficient that Argueta knew
he was crossing into the United States and knew he did not
have permission to do so. If Argueta’s sole “intent was to be
taken into custody,” then “no rational trier of fact could
conclude [he] was guilty of the specific intent crime of
attempted illegal reentry.” Id. at 930 & n.3. The district
court’s verdict thus rested on an erroneous legal standard.

                               B

    When a district court in a bench trial has made a legal
error regarding the elements of an offense, the error is
reviewed using the same harmless error standard that would
apply to an erroneous jury instruction. See Wilson v. United
States, 250 F.2d 312, 323–24 (9th Cir. 1957). “An error in
describing an element of the offense in a jury instruction is
harmless only if it is clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent
the error.” United States v. Liu, 731 F.3d 982, 992 (9th Cir.
2013) (internal quotation marks omitted); see also United
States v. Driggers, 559 F.3d 1021, 1025–26 (9th Cir. 2009).
Accordingly, the question here is whether it is clear beyond
a reasonable doubt that the district court would have found
Argueta guilty absent the error. The government argues the
district court’s error was harmless on two independent
theories. We address them in turn, finding neither persuasive.

                               1

    The government argues Lombera-Valdovinos applies only
when there is no evidence of anything other than the intent to
be taken into custody. In the government’s view, where, as
16         UNITED STATES V. ARGUETA-ROSALES

here, there is substantial evidence of the defendant’s specific
intent to enter the United States free from official restraint,
Lombera-Valdovinos “is of no import,” even if there is also
substantial evidence of the intent to enter into custody. We
disagree, and take this opportunity to clarify Lombera-
Valdovinos.

    It is true that in Lombera-Valdovinos we said “this case
presents a rare set of factual circumstances where there is no
evidence of anything other than the intent to be taken into
custody.” 429 F.3d at 930 n.3 (emphasis added). We made
that statement, however, in the course of reviewing the denial
of the defendant’s Rule 29 motion for judgment of acquittal.
See id. at 928, 930. Under that standard, we were required to
affirm the defendant’s conviction so long as any rational trier
of fact could have found he possessed the specific intent to
enter free from official restraint. See id. Thus, by pointing to
the complete absence of contrary evidence, we were simply
applying that highly deferential standard of review. We did
not hold that any evidence of an unlawful intent would
compel a conviction. We now clarify that where, as here,
there is contradictory evidence regarding the defendant’s
intent, it is for the trier of fact to determine whether the
government has proven unlawful intent beyond a reasonable
doubt.      The government’s contention that Lombera-
Valdovinos is limited to cases in which there is no evidence
of a specific intent to enter the United States free from
official restraint is without merit. We reject the government’s
argument the district court’s error was harmless on this
ground.

    That being said, we also clarify that the government need
not prove that entry free from official restraint was the
defendant’s sole intent. The government must prove only that
           UNITED STATES V. ARGUETA-ROSALES                  17

Argueta had a specific intent to enter the United States free
from official restraint, not that this was his only purpose. See
Lombera-Valdovinos, 429 F.3d at 928 (noting the defendant
“cross[ed] the border with the intent only to be imprisoned”
(emphasis added)); cf. United States v. Shabban, 612 F.3d
693, 696 & n.1 (D.C. Cir. 2010) (“As Shabban concedes,
evidence that a defendant had multiple intentions does not
mean there was insufficient evidence of the requisite statutory
intent.”); United States v. Julian, 427 F.3d 471, 485 (7th Cir.
2005) (“A defendant need not facilitate someone’s interstate
or foreign travel with the sole or principal intent that he
engage in prostitution in order to be liable under section
2421, so long as prostitution was a significant motive.”);
United States v. Fairchild, 122 F.3d 605, 612 (8th Cir. 1997)
(holding that “only one of the [defendant’s] intentions must
meet the elements of the offense”); 1 Wayne R. LaFave,
Substantive Criminal Law § 5.2 (2d ed. 2015) (“It may be
said that, so long as the defendant has the intention required
by the definition of the crime, it is immaterial that he may
also have had some other intention.”). Similarly, 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. Lombera-Valdovinos, 429 F.3d at 930.

                               2

   In the alternative, the government contends the error was
harmless because there was overwhelming evidence of
Argueta’s intent to enter free from official restraint. We
again disagree.

    There was, to be sure, evidence that Argueta crossed the
border with the specific intent to enter free from official
restraint. He scaled a border fence in an area in which,
18         UNITED STATES V. ARGUETA-ROSALES

according to one border patrol agent’s testimony, there was
a 50–50 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.

    Evidence also pointed in the other direction, however.
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
            UNITED STATES V. ARGUETA-ROSALES                         19

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.

   For these reasons, it is not clear beyond a reasonable
doubt the district court would have found Argueta guilty
absent its misapprehension of the specific intent element.
The error therefore was not harmless.4

                                  IV

    In his concurring opinion, Judge Bybee suggests our court
should use this case as a vehicle to reconsider en banc three
sets of circuit precedents: (1) our holdings in cases such as
United States v. Oscar, 496 F.2d 492, 493–94 (9th Cir. 1974),
and United States v. Pacheco-Medina, 212 F.3d 1162,
1163–66 (9th Cir. 2000), that, for immigration purposes,
“entry” is a term of art that requires not only physical
presence in the United States but also freedom from official
restraint; (2) our holding in United States v. Gracidas-
Ulibarry, 231 F.3d 1188, 1193 (9th Cir. 2000) (en banc), that
attempted illegal reentry under 8 U.S.C. § 1326 is a specific
intent crime; and (3) our holding in United States v. Lombera-
Valdovinos, 429 F.3d 927, 929 (9th Cir. 2005), that “official
restraint” encompasses restraint by government officials other
than those of the Department of Homeland Security (DHS).
In our view, each of these precedents rests on a solid footing.


  4
    Argueta argues remand is not required because the district court has
already found a reasonable doubt as to whether he crossed into the United
States with the specific intent to enter the country free from official
restraint. Having reviewed the record, we are not persuaded the district
court has made such a finding. We therefore reject Argueta’s argument.
20         UNITED STATES V. ARGUETA-ROSALES

                              A

    Judge Bybee would have us reconsider our longstanding
view that, for immigration purposes, “entry” is a term of art
requiring not only physical presence in the United States but
also freedom from official restraint. As Judge Bybee
recognizes, this principle was established more than a century
ago, see, e.g., Ex parte Chow Chok, 161 F. 627, 628–31
(N.D.N.Y.), aff’d 163 F. 1021 (2d Cir. 1908), and has long
been recognized not only by this court but also by the
Supreme Court, see Kaplan v. Tod, 267 U.S. 228, 230–31
(1925); United States v. Ju Toy, 198 U.S. 253, 263 (1905),
other federal circuits, see, e.g., Dimova v. Holder, 783 F.3d
30, 39 (1st Cir. 2015); Correa v. Thornburgh, 901 F.2d 1166,
1171–72 (2d Cir. 1990); Parra-Rojas v. Att’y Gen. U.S.,
747 F.3d 164, 170 (3d Cir. 2014); United States v. Angeles-
Mascote, 206 F.3d 529, 531 (5th Cir. 2000); Vitale v. INS,
463 F.2d 579, 581–82 (7th Cir. 1972); Nyirenda v. INS,
279 F.3d 620, 623 (8th Cir. 2002), and the Board of
Immigration Appeals, see, e.g., Matter of Martinez-Serrano,
25 I. & N. Dec. 151, 153 (BIA 2009); Matter of Pierre, 14 I.
& N. Dec. 467, 468–69 (BIA 1973). Judge Bybee offers no
persuasive justification for casting aside this longstanding and
widely accepted understanding of what it means to enter the
United States.

    Judge Bybee perhaps believes this understanding of
“entry” should be preserved for immigration purposes
generally but should not apply to criminal immigration laws
such as 8 U.S.C. §§ 1324, 1325 and 1326. Concurrence at
30–34. Here again, however, Judge Bybee’s view conflicts
not only with the longstanding law of this court but also with
the law of other circuits. See, e.g., United States v. Macias,
740 F.3d 96, 100 (2d Cir. 2014); Angeles-Mascote, 206 F.3d
            UNITED STATES V. ARGUETA-ROSALES                         21

at 531; United States v. Cardenas-Alvarez, 987 F.2d 1129,
1133 (5th Cir. 1993); United States v. Kavazanjian, 623 F.2d
730, 736–37 (1st Cir. 1980); United States v. Vasilatos,
209 F.2d 195, 197 (3d Cir. 1954). We see no reason for
adopting one meaning of entry for immigration purposes
generally but a different meaning for criminal immigration
laws, much less doing so to create a circuit split.

    Indeed, there are at least two persuasive reasons for
continuing to adhere to this longstanding and widely accepted
doctrine. First, as Judge Bybee recounts, the doctrine has
been around for decades, and, although Congress has
amended the criminal immigration laws in the interim, it has
never called into question or expressly overruled the firmly
established judicial gloss on “entry.” As the Supreme Court
has observed on many occasions, “Congress is presumed to
be aware of an administrative or judicial interpretation of a
statute and to adopt that interpretation when it re-enacts a
statute without change.” Forest Grove Sch. Dist. v. T.A.,
557 U.S. 230, 239–40 (2009) (quoting Lorillard v. Pons,
434 U.S. 575, 580 (1978)); see, e.g., Hing Sum v. Holder,
602 F.3d 1092, 1100–01 & n.8 (9th Cir. 2010) (interpreting
the word “admission” in § 1101(a)(13)(A) in light of existing
BIA precedent requiring freedom from restraint).5


 5
   Judge Bybee suggests the official restraint doctrine may no longer be
valid after the enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), which he says “eliminated the
concept of ‘entry’ from the INA altogether.” Concurrence at 35–36 n.3.
This argument is unpersuasive. First, the provision Judge Bybee focuses
on, 8 U.S.C. § 1101(a)(13)(A), expressly continues to rely on the concept
of “entry,” by using that term as part of the definition of “admission.”
Second, as Judge Bybee acknowledges, we have already held, in Pacheco-
Medina, 212 F.3d at 1166, that IIRIRA’s changes to § 1101(a)(13)(A) did
not alter the established meaning of “entry” under § 1326. Third, when
22           UNITED STATES V. ARGUETA-ROSALES

    Second, the official restraint doctrine is a practical
necessity. In its absence, mere physical presence in the
United States, without permission, would give rise to criminal
liability for illegal reentry under § 1326. See United States v.
Barragan-Cepeda, 29 F.3d 1378, 1381 (9th Cir. 1994) (listing
the elements of § 1326). We doubt Congress intended to
make criminals out of persons who, for any number of
innocent reasons, approach immigration officials at the
border. Because “in a literal and physical sense a person
coming from abroad enters the United States whenever he
reaches any land, water or air space within the territorial
limits of this nation,” “freedom from official restraint must be
added to physical presence before entry is accomplished.”
Vasilatos, 209 F.2d at 197.

                                    B

    Judge Bybee also questions our holding in United States
v. Gracidas-Ulibarry, 231 F.3d 1188, 1190, 1196 (9th Cir.
2000) (en banc), that attempted illegal reentry is a specific
intent crime, citing four circuits that have rejected that
proposition – United States v. Rodriguez, 416 F.3d 123, 125
(2d Cir. 2005); United States v. Morales-Palacios, 369 F.3d
442, 445–49 (5th Cir. 2004); United States v. Peralt-Reyes,


Congress adopted IIRIRA in 1996, it also retained and even expanded the
use of the term “entry” under §§ 1325 and 1326. See Pub. L. No. 104-
208, Div. C, Title I, § 105, Title III, § 305 (1996). Given that “entry” had
a firmly established meaning at that time – freedom from official restraint
– we can infer that Congress intended to retain that meaning when it
adopted IIRIRA. Lezama-Garcia v. Holder, 666 F.3d 518 (9th Cir. 2011),
upon which Judge Bybee relies, did not address the “official restraint”
doctrine or the meaning of entry under §§ 1325 and 1326, and therefore
does not cast doubt on our longstanding precedent applying the official
restraint doctrine to entry under §§ 1325 and 1326.
          UNITED STATES V. ARGUETA-ROSALES                  23

131 F.3d 956, 957 (11th Cir. 1997); United States v. Reyes-
Medina, 53 F.3d 327, at *1 (1st Cir. 1995) (unpublished).
Concurrence at 39 & n.5. All four of those cases, however,
were decided before the Supreme Court’s decision in United
States v. Resendiz-Ponce, 549 U.S. 102, 106–07 (2007),
which confirmed that the attempt prong of § 1326
incorporates the common law meaning of attempt, including
an element requiring the specific intent to commit the
underlying crime. Resendiz-Ponce confirms that Gracidas-
Ulibarry was correctly decided.

                              C

    Finally, Judge Bybee questions our holding in United
States v. Lombera-Valdovinos, 429 F.3d 927, 929 (9th Cir.
2005), that official restraint “encompasses restraint by any
government official, not just officials of DHS,” the
Department of Homeland Security. Concurrence at 40. He
contends official restraint has “always been limited to
physical restraint or surveillance of an alien by a government
officer operating at or just inside the border.” Concurrence
at 40.

    Official restraint, however, “need not be by immigration
officers,” Correa v. Thornburgh, 901 F.2d 1166, 1172 (2d
Cir. 1990); see, e.g., Zhang v. Slattery, 55 F.3d 732, 753, 755
(2d Cir. 1995) (shipwrecked alien restrained by local police
upon reaching shore), superseded by statute on other grounds
as recognized in City of New York v. Permanent Mission of
India to United Nations, 618 F.3d 172, 201 (2d Cir. 2010);
Edmond v. Nelson, 575 F. Supp. 532, 535 (E.D. La. 1983)
(aliens seeking entry by sea “restrained” by the master of a
rescuing ship, acting pursuant to government regulations);
Matter of Yam, 16 I. & N. Dec. 535, 536–37 (BIA 1978)
24         UNITED STATES V. ARGUETA-ROSALES

(alien found at the border and taken under guard by local
police to a medical facility), and it need not be at the border,
see Kaplan v. Tod, 267 U.S. 228, 229 (1925) (holding a girl
was under official restraint even though she was “handed
over to the Hebrew Sheltering and Immigrant Aid Society,”
which in turn allowed her to live with her father).

    The position Judge Bybee advances in his concurrence is
contrary not only to this precedent but also to the position the
government itself argued to us in Lombera-Valdovinos, where
the government expressly rejected the proposition that “only
Department of Homeland Security restraint constitutes
official restraint under section 1326.” The government
argued there that “an alien is not deemed to have entered
unless he is free to go at large” within the United States, the
very principle we followed in Lombera-Valdovinos. Judge
Bybee, therefore, is seeking to relitigate a rule of law the
government expressly advocated for in Lombera-Valdovinos
– and which it has not asked us to reconsider now.

    Nor has Judge Bybee suggested a rationale for
criminalizing conduct such as that engaged in by the
defendant in Lombera-Valdovinos. Lombera-Valdovinos
crossed the border, walked directly up to a border control
agent and asked to be taken into custody. He never sought to
evade detection. He never sought the freedom to go at large
within the United States. He neither sought nor “gained a
foothold in the United States.” Kaplan, 267 U.S. at 230. We
see no reason Congress would have intended § 1326 to reach
such conduct.

   Judge Bybee alternatively suggests Lombera-Valdovinos
should be reconsidered on a practical ground – because it
would allow defendants to avoid liability for attempting to
           UNITED STATES V. ARGUETA-ROSALES                  25

reenter the United States by opportunistically asserting, after
detection, that they crossed into the country solely to be
placed into official custody. Concurrence at 43–44. He
argues requiring the government to prove beyond a
reasonable doubt that the defendant had the specific intent to
enter the United States free from official restraint imposes too
great a burden on prosecutors.

    This speculation seems unfounded. When a person is
spotted by border patrol agents crossing into the United
States, away from an official port of entry, this alone is
compelling evidence that the person intends to achieve not
only physical presence in the United States but also freedom
from official restraint. Cf. United States v. Quintana-Torres,
235 F.3d 1197, 1200 (9th Cir. 2000) (noting an alien’s
presence in the United States would provide convincing proof
of the alien’s intention to be here unless adequately explained
away, “much as a face covered by jam near a jam jar is
convincing proof of jam-eating unless otherwise explained”).
Certainly there may be unusual cases in which persons could
be acquitted of attempted illegal reentry where, as in
Lombera-Valdovinos, they cross the border, walk directly up
to a border control agent and ask to be taken into custody.
But such cases present “a rare set of factual circumstances.”
Lombera-Valdovinos, 429 F.3d at 930 n.3. In the more than
10 years Lombera-Valdovinos has been on the books, it has
not, to our knowledge, hindered effective prosecution of those
who attempt to enter the United States unlawfully. Indeed,
we are aware of only a single case – Lombera-Valdovinos
itself – in which an individual has been acquitted on this
ground.
26         UNITED STATES V. ARGUETA-ROSALES

                              V

    Because the district court applied an incorrect legal
standard, we vacate Argueta’s conviction and sentence in No.
14-50384 and vacate the revocation of supervised release and
sentence in No. 14-50385. We remand for proceedings
consistent with this opinion.

     VACATED AND REMANDED.



BYBEE, Circuit Judge, concurring in the judgment and
dissenting as to everything else:

    I agree with the majority that the specific-intent standard
that governs Argueta-Rosales’s case is supplied by United
States v. Lombera-Valdovinos, 429 F.3d 927, 928–30 (9th
Cir. 2005). Because the district court failed to apply that
standard, and because we are bound by Lombera-Valdovinos,
I concur in the majority’s judgment vacating the conviction
and remanding this case for retrial. Maj. Op. at 19.

    In all other respects, however, I dissent. I am convinced
that Lombera-Valdovinos was wrongly decided and that our
understanding of when an alien is “free from official
restraint” has reached an absurd position. Under Lombera-
Valdovinos, an alien is not guilty of attempted illegal reentry
even if he crosses into the United States surreptitiously and
outside a port of entry, so long as he 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. Judge Rymer rightly
pointed out in dissent from Lombera-Valdovinos that this
           UNITED STATES V. ARGUETA-ROSALES                  27

novel and unduly expansive definition of “official restraint”
makes no sense and creates a puzzling loophole in the law of
attempted illegal reentry. See Lombera-Valdovinos, 429 F.3d
at 931–33 (Rymer, J., dissenting). The passage of time has
done nothing to blunt the force of her critique. It is time we
revisited Lombera-Valdovinos.

                               I

    I begin by tracing the history that led up to Lombera-
Valdovinos, because it was a case in which “what’s past [was]
prologue.” William Shakespeare, The Tempest act 2, sc. 1.
Over roughly the last 100 years, the term “entry” has taken on
a “narrower meaning than its colloquial usage” in the context
of immigration law. Lombera-Valdovinos, 429 F.3d at 928.
For purposes of 8 U.S.C. §§ 1325–26, an alien is considered
not to have effected an “entry” into the United States unless
he not only “cross[es] the . . . border,” but does so “free from
official restraint.” United States v. Hernandez-Herrera,
273 F.3d 1213, 1218 (9th Cir. 2001). The provenance of the
official restraint doctrine—and the future of the doctrine, as
evidenced by Lombera-Valdovinos and this case—should
make us rethink the concept of what it means to enter the
United States.

                               A

    Courts adopted this peculiar definition of “entry”—
freedom from official restraint—because, for many years,
immigration law drew a distinction between exclusion and
deportation.   Excluded aliens were those who were
summarily sent home at the border, in contrast to aliens who
were afforded the more elaborate process of deportation
because they were “already physically in the United States.”
28        UNITED STATES V. ARGUETA-ROSALES

Landon v. Plasencia, 459 U.S. 21, 25 (1982). See Zadvydas
v. Davis, 533 U.S. 678, 693 (2001) (“The distinction between
an alien who has effected an entry into the United States and
one who has never entered runs throughout immigration
law.”). The distinction was a crucial one. By virtue of their
presence in the United States, aliens in deportation
proceedings had greater procedural and substantive rights
than aliens in exclusion proceedings—an administrative
hearing and an appeal, the right to designate the country of
deportation, and the right to seek voluntary departure.
Landon, 459 U.S. at 26. By contrast, an excludable alien is
a determination at the border, “usually . . . at the port of
entry.” Landon, 459 U.S. at 25. As the Court explained in
Zadvydas, “certain constitutional protections available to
persons inside the United States are unavailable to aliens
outside our geographic borders. But once an alien enters the
country, the legal circumstance changes, for the Due Process
Clause applies to all ‘persons’ within the United States,
including aliens.” 533 U.S. at 693. See generally David A.
Martin, Graduated Application of Constitutional Protections
for Aliens: The Real Meaning of Zadvydas v. Davis, 2001
Sup. Ct. Rev. 47, 92–100.

    The distinction between excludable and deportable aliens
required courts to confront a largely metaphysical, but tricky
immigration law problem: What was to be done about aliens
who physically crossed the United States border but never
reached the point of being able to move freely within the
country and mix with the general population? The paradigm
example for this is an alien who presents himself at a port of
entry and is taken to a “secondary inspection” area,
technically across the international border, for further
investigation into whether he is authorized to enter the United
States. Was the alien now entitled to a deportation
          UNITED STATES V. ARGUETA-ROSALES                  29

proceeding because border agents walked him a few feet
across the border? The courts responded to this conceptual
ambiguity about which due process rights apply in the
immigration context by developing the “legal fiction that
entry is not accomplished until a person is free from official
restraint.” United States v. Parga-Rosas, 238 F.3d 1209,
1213 (9th Cir. 2001). Under this legal fiction, an alien who
never made it out of a port of entry, who was held
temporarily by the United States, or who crossed the border
at some other place but was never outside the control of the
border authorities, would be deemed not to have entered the
United States despite having done so in a literal sense. See,
e.g., Kaplan v. Tod, 267 U.S. 228, 230 (1925) (“[W]hile she
was at Ellis Island she was to be regarded as stopped at the
boundary line and kept there unless and until her right to
enter should be declared.”); United States v. Ju Toy, 198 U.S.
253, 263 (1905) (holding that an alien detained at a port of
entry, “although physically within our boundaries, is to be
regarded as if he had been stopped at the limit of our
jurisdiction, and kept there while his right to enter was under
debate”).

    Although it was relatively easy to determine whether an
alien entered the United States when he presented himself for
inspection at a port of entry, it was more complicated to
determine if an alien had entered the United States when he
was interdicted inside the United States, but near the border.
The case generally credited with inaugurating the official
restraint doctrine in this area is a Chinese exclusion case, Ex
Parte Chow Chok, 161 F. 627 (N.D.N.Y.), aff’d , 163 F. 1021
(2d Cir. 1908). See Lombera-Valdovinos, 429 F.3d at 929;
Pacheco-Medina v. Untied States, 212 F.3d 1162, 1163–64
(9th Cir. 2000). In that case U.S. inspectors had tracked eight
Chinese aliens as they crossed from Canada into the United
30         UNITED STATES V. ARGUETA-ROSALES

States. The aliens were “kept . . . in sight,” stopped a quarter
of a mile inside the United States, and taken into custody.
Chow Chok, 161 F. at 628. The aliens filed for a writ of
habeas corpus, contending that, because they had successfully
entered the United States, they could only be deported, not
excluded. The court found, however, that the aliens had not
successfully entered the United States because “from the
moment when they crossed the border, they were in the
actual, though not formal, custody of the inspectors.” Id. at
630. Accordingly, they were only entitled to administrative
processing and could be excluded.

                               B

     Although the “entry fiction” doctrine began life as a
means of excluding aliens at or near the border without
affording them deportation proceedings, it soon crossed over
into the realm of criminal law. Courts began to interpret the
term “enter,” in criminal statutes, as a term of art whose
meaning roughly corresponded to the contours of the entry
fiction doctrine in immigration law.

    For example, in United States v. Vasilatos, 209 F.2d 195
(3d Cir. 1954), a Greek seaman who had previously been
deported from the United States falsely represented to an
immigration officer at the Port of Philadelphia that he had
never been deported and thereby gained temporary admission
to the United States. Id. at 196–97. The seaman stayed on
his ship until it called at Baltimore, where he disembarked
and headed inland. When he was apprehended in New York
a year later, he was charged with illegal reentry. Id. at 197.
The government alleged that the seaman had “entered” the
United States at Philadelphia, making that city the proper
venue for his trial; the seaman argued that his entry had
           UNITED STATES V. ARGUETA-ROSALES                    31

occurred at Baltimore and that Baltimore was thus the proper
venue. Id.

     The then-prevailing illegal reentry statute (8 U.S.C. § 180
(1946)) did not define what constituted an “entry” into the
United States, and there was no general definition of the term
elsewhere in Title 8, so the Third Circuit—understandably
—looked to the “official restraint” cases for guidance as to
when an entry occurred.            The court observed that
“administration of the immigration laws has long proceeded
on th[e official-restraint] theory of entry” and saw “no reason
to disturb” that theory in the context of the criminal law.
Vasilatos, 209 F.2d at 197. It therefore held that the seaman
had “entered” the United States at Philadelphia, where his
fraudulently obtained clearance for temporary admission had
first given him freedom from official restraint, rather than at
Baltimore, where he had physically landed in the country. Id.

    After the relevant events in Vasilatos occurred, but before
the Third Circuit issued its decision, Congress enacted the
Immigration and Nationality Act of 1952, which collected
and reorganized the various provisions of American
immigration law in one place: Title 8. The Act’s definitional
provision defined the term “entry” very broadly as “any
coming of an alien into the United States, from a foreign port
or place or from an outlying possession, whether voluntarily
or otherwise.” 8 U.S.C. § 1101(a)(13) (1952). But despite
the facial breadth of this definition, the courts were unwilling
to do away with the traditional requirement of freedom from
official restraint. Rather, they simply assumed without much
explanation that § 1101(a)(13) had incorporated the
preexisting judicial doctrine of official restraint. See, e.g., In
re Dubbiosi, 191 F. Supp. 65, 66 (E.D. Va. 1961)
(acknowledging the adoption of 8 U.S.C. § 1101(a)(13) but
32         UNITED STATES V. ARGUETA-ROSALES

stating that “[w]e do not believe, however, that this definition
removes the requirement of establishing not only physical
presence, but also freedom from official restraint, before
‘entry’ is accomplished”).

    At our first opportunity, in United States v. Oscar,
496 F.2d 492 (9th Cir. 1974), we adopted the same view of
what constitutes an “entry” for criminal purposes. Oscar and
an accomplice arranged for two Honduran nationals to be
driven to the San Ysidro Point of Entry, where the Hondurans
lied to customs officials and said they were United States
citizens. The Hondurans were taken to secondary inspection
and later arrested. Id. at 492–93. Oscar was subsequently
convicted under 18 U.S.C. § 2 of aiding and abetting an
illegal entry into the United States.

     We reversed the conviction, holding that Oscar could not
be guilty of aiding and abetting because the two Hondurans
had not committed the underlying offense of illegal entry
under 8 U.S.C. § 1325. We acknowledged that the two had
come into the United States “[i]n a physical sense” when they
moved to secondary inspection, which ostensibly was enough
to satisfy the broad definition of “entry” in the 1952 Act.
Oscar, 496 F.2d at 493. But we agreed with Vasilatos’s and
Dubbiosi’s holdings that “entry,” for immigration-related
purposes, requires freedom from official restraint. Id. at
493–94. We reasoned that although Vasilatos and Dubbiosi
were not factually analogous to Oscar’s case, it made sense
for us to adopt their approach to “entry” because Congress
had chosen to define “entry” in § 1101(a)(13), and it was
“unlikely that Congress would define a term in § 1101 . . . if
it intended the term to have different meanings” in different
            UNITED STATES V. ARGUETA-ROSALES                         33

contexts. Id. at 493–94.1 That consideration, along with the
rule of lenity, led us to conclude that the Hondurans had not
“entered” the United States because they had not left the Port
of Entry and thus never escaped “official restraint.” Id. at
494.

    In subsequent cases interpreting 8 U.S.C. § 1326, the
illegal-reentry statute, we adopted the same view of “entry”
that Oscar applied under § 1325, holding that an illegal
reentry required both physical entry into the country and
freedom from official restraint.2 For example, in United
States v. Martin-Plascencia, 532 F.2d 1316 (9th Cir. 1976),
the defendant was charged with unlawful entry. He had gone
near the port of entry at San Ysidro and crawled through a
hole in one chain link fence and under a second. He was
caught 50 yards into the United States. We rejected his
argument that he was under official restraint because he had
not “reach[ed] the streets of San Ysidro”:

         while nominally within the confines of the
         Port of Entry, [defendant] was at no instant up
         until the moment of his arrest under any type


     1
     Oscar seems to have assumed in error that Vasilatos rested on an
interpretation of § 1101(a)(13)’s definition of “entry.” Oscar, 496 F.2d
at 493–94. But Vasilatos expressly stated that it did not. The Vasilatos
opinion issued after § 1101(a)(13) was adopted, but the relevant events
occurred before the statute took effect. Vasilatos, 209 F.2d at 196–97.
Thus, when we considered the import of § 1101(a)(13) in Oscar, we were
writing on a cleaner slate than we realized.
 2
   See, e.g., United States v. Gonzalez-Torres, 309 F.3d 594, 598–99 (9th
Cir. 2002); United States v. Hernandez-Herrera, 273 F.3d 1213, 1218–19
(9th Cir. 2001); United States v. Castellanos-Garcia, 270 F.3d 773,
775–77 (9th Cir. 2001).
34        UNITED STATES V. ARGUETA-ROSALES

       of official restraint, but to the contrary was
       exercising his free will, youthful enterprise,
       and physical agility in evading fixed barriers
       in accomplishing his entry.

Id. at 1317. See also United States v. Aguilar, 883 F.2d 662
(9th Cir. 1989).

                              C

    We substantially broadened our understanding of the
official restraint doctrine in United States v. Pacheco-Medina,
212 F.3d 1162 (9th Cir. 2000). Pacheco was climbing the
international fence between the United States and Mexico
when he was picked up by a surveillance camera. The
monitor signaled a Border Patrol agent on a bicycle, and he
arrived just as Pacheco dropped off the fence, “crouched in
preparation for escape in the country at large.” Id. at 1163.
Pacheco ran, but was quickly apprehended. We overturned
his conviction for unlawful entry because, although he “tried
to get into the country” and, in fact, had succeeded in getting
on U.S. soil without permission, “he was under official
restraint the whole time.” Id. at 1165. Of course, Pacheco
was not under “official restraint” the “whole time,” at least
not in the sense in which immigration law created the
doctrine to distinguish between deportable and excludable
aliens.

    It is worth pausing here to consider how far our
conception of “official restraint” had strayed from the
meaning developed in immigration law up until Pacheco-
Medina. Recall that the “official restraint” distinction
developed to explain why we gave different due process
rights to aliens who obtained access to the United States
             UNITED STATES V. ARGUETA-ROSALES                            35

(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.3

   3
     In 1996, Congress refined the INA’s concept of lawful entry. The
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)
eliminated the definition of “entry” from the INA altogether, replacing it
with the term “admission.” See Illegal Immigration Reform and
Immigrant Responsibility Act, Pub. L. No. 104–208, § 301(a), 110 Stat.
3009 (1996), codified at 8 U.S.C. § 1101(a)(13)(A). Under the new
definition “admission” was “the lawful entry of the alien into the United
States after inspection and authorization by an immigration officer.”
(emphasis added)). As we recognized in 2011, “IIRIRA replaced ‘entry’
with [the] new concept [of] ‘admission’” and, in so doing, it replaced the
dividing line between excludable and deportable aliens with a new
dividing line—one between lawfully admitted aliens and all other aliens,
with the latter now subject to “more general ‘removal’ proceedings.”
Lezama-Garcia v. Holder, 666 F.3d 518, 527–28 (9th Cir. 2011).

      Pacheco acknowledged, but rejected out of hand, the changes in
definitions in IIRIRA. Although Congress had told us that lawful
“admission” required “the lawful entry of the alien . . . after inspection
and authorization,” 8 U.S.C. § 1101(a)(13)(A) (emphasis added),
Pacheco-Medina said that “[j]ust why [the new definition] should matter
at all is far from clear.” The fact that IIRIRA eliminated the definition of
“entry”—and replaced it with something very different—somehow “ha[d]
no significance here.” Evidently we believed that Congress had no place
in defining “entry”: “It certainly does not change the preexisting, and still
existing, judicial concept of what an entry is.” Pacheco, 212 F.3d at 1166
& n.7.

     The majority suggests that Congress’s change does not matter
because: (1) the term “entry” is still used within the definition of
“admission,” (2) we reached this issue in Pacheco, and (3) Congress
retained the use of the term “entry” in other statutory sections. Maj. Op.
36           UNITED STATES V. ARGUETA-ROSALES

    Pacheco-Medina quickly led to some very strange
“how-many-angels-are-dancing-on-the-head-of-a-pin”
inquiries. Consider two cases decided shortly after Pacheco-
Medina. In Hernandez-Herrera, Herrera was part of a group
of aliens who scaled the international fence. The “still
watch” agent had the group under observation, and they were
quickly detained by field agents. Herrera, however, escaped
the agents and ran into thick brush where, unfortunately for
him, he “was free from official restraint because he was no
longer visible to the ‘still watch’ agent. . . . [The field agent]
followed Herrera’s footprints, and not Herrera.” 273 F.3d at
1219. We affirmed Herrera’s conviction for illegal reentry.
By contrast, in Gonzalez-Torres, Border patrol agent
Watkins, using binoculars, observed Torres and others enter
the United States. Watkins radioed to a second agent, who
began pursuit. Although Watkins actually “lost sight of the
group ‘for a number of seconds,’” we found that this gap in
the surveillance was not sufficient to break the officer’s
“continuous observation.” 309 F.3d at 599. We overturned
Torres’s conviction. The fact that two aliens who commit
identical acts and have identical mental states are treated
differently based on whether or not a border patrol agent
managed to watch them the whole time should give us pause.



at 21–22 n.5. But this misses the point. The majority urges that the
official restraint doctrine should be adhered to because it “has been around
for decades” and Congress has never “called into question . . . the firmly
established judicial gloss on ‘entry.’” Id. at 21. But is not that exactly
what Congress has done? Congress decided to eliminate that term of art
from the face of the statutory section and replace it with something else.
For my present purposes, I do not have to determine what effect IIRIRA
might have had on the official restraint doctrine. But, at the least, the
question of what changes, if any, IIRIRA worked on the official restraint
doctrine deserved more discussion that it received in Pacheco-Medina.
           UNITED STATES V. ARGUETA-ROSALES                   37

     As a theoretical matter, moreover, it is far from clear that
the concept of official restraint maps onto criminal law
particularly well. Official restraint, after all, was designed to
answer the question whether an alien in custody could be
excluded or must be deported, whether he was to be afforded
minimal procedural rights or plenary rights. See Chow Chok,
161 F. at 628. We must, of course, determine what “entry”
means in convictions under §§ 1325–26. But our concern has
nothing to do with what process the alien is due. Once an
alien has been indicted under either of these sections, the
scope of his procedural rights is decided: he is entitled to a
trial by jury, see U.S. Const. amend. VI; representation by
counsel, id.; and the sundry other procedural protections that
define our criminal justice system, id. amend. V. “Official
restraint” thus ends up being used to answer an entirely
different question in criminal cases—i.e., when the actus reus
of illegal entry or reentry has been accomplished—and, like
any repurposed concept, produces some odd results. For
example, the notion that an alien who hops a border fence and
makes it a substantial distance into this country has not
committed the act of entering the United States because he
was under constant surveillance defies common sense.
Perhaps this is why neither § 1325 nor § 1326 nor
§ 1101(a)(13) mentions any such requirement.

    The majority provides little reason for adopting the
concept of entry which was developed to discern between
different due process standards in the immigration context, in
the very different context of determining when someone has
committed the substantive crime of illegal reentry. It first
warns that the crime of reentry, without the official restraint
limitation, would unfairly “make criminals out of persons
who, for any number of innocent reasons, approach
immigration officials at the border.” Maj. Op. at 22. I
38           UNITED STATES V. ARGUETA-ROSALES

respectfully disagree that this is a problem.4 The lawful
process to enter the U.S. does not include walking across the
border without permission. That is, by definition, an illegal—
or unauthorized—entry. Whether or not that person happens
to be under surveillance at the time does nothing to change
her culpability.

    The majority also suggests that we should continue to
apply the official restraint doctrine in the criminal context
because “the doctrine has been around for decades.” Maj.
Op. at 21. But the fact that this doctrine was adopted long
ago—without any serious thought either at its inception or
since—is precisely what should give us pause.

                                    D

    There is one final development I must mention. Prior to
Lombera-Valdovinos, an alien who could not be charged with
illegal entry or reentry because he was never free from
official restraint could still be charged with attempted illegal
entry or reentry. See United States v. Leos-Maldonado,
302 F.3d 1061, 1063, 1065 (9th Cir. 2002) (holding that an
alien can be guilty of attempted entry even if he is under
official restraint throughout his crossing of the U.S. border).
We held in United States v. Gracidas-Ulibarry, 231 F.3d
1188, 1195–96 (9th Cir. 2000) (en banc), that attempted



  4
     One doesn’t have to look beyond this case, Lombera-Valdovinos,
Gonzalez-Torres, or Pacheco to see that these were not “persons who, for
any number of innocent reasons, approach immigrant officials.” Whether
these persons are scaling the international fence or running through desert
brush, they were not persons seeking to “approach immigration officials”
for “innocent reasons.”
            UNITED STATES V. ARGUETA-ROSALES                          39

illegal reentry is a specific-intent crime.5 At the same time
we construed the requisite intent broadly, concluding that an
alien need only have the “conscious desire[] to reenter the
United States without the express consent of the Attorney
General.” Id. at 1196; see also id. at 1198 (“§ 1326 requires
a finding that the defendant consciously desired to reenter the
United States without consent.”). Under this standard, an
alien who intentionally crossed the border but did not escape
official restraint would usually be guilty of attempted illegal
entry or reentry, assuming he could not claim one of the
general criminal-law defenses to specific intent. See, e.g.,
United States v. Smith-Baltiher, 424 F.3d 913, 925 (9th Cir.
2005) (holding that a § 1326 defendant was entitled to present
a mistake-of-fact defense based on his alleged belief that he
was a U.S. citizen); United States v. Blanco-Gallegos,
188 F.3d 1072, 1076 (9th Cir. 1999) (considering and
rejecting a § 1326 defendant’s voluntary-intoxication defense
on the merits).

                                    II

    Against this legal backdrop, we heard Lombera-
Valdovinos. A Border Patrol agent first saw Lombera
standing on the Mexico side of the U.S.-Mexico border. The
agent looked away for a brief period, and when he turned
back, Lombera was now on the U.S. side of the primary

  5
    I note that every other circuit to consider the question has disagreed
with us, holding that § 1326 does not require specific intent. See United
States v. Rodriguez, 416 F.3d 123, 125–26 (2d Cir. 2005); United States
v. Morales-Palacios, 369 F.3d 442, 446–48 (5th Cir. 2004); United States
v. Peralt-Reyes, 131 F.3d 956 (11th Cir. 1997) (per curiam); United States
v. Reyes-Medina, 53 F.3d 327 (1st Cir. 1995) (per curiam). As I observe
in text, we have given the specific intent requirement a fairly generous
reading, which may have effectively narrowed the gap between us.
40         UNITED STATES V. ARGUETA-ROSALES

fence, walking directly toward the agent. The agent drove
toward the defendant, and when they met, Lombera said, “I
want to see an immigration judge,” admitted to being a
Mexican citizen, and conceded that he had no legal right to
enter the United States. He explained that he had crossed the
border because he “wished to go back to jail.” Lombera, who
had previously been deported several times, was arrested,
charged with attempted illegal reentry, and convicted of that
offense by a jury. Lombera-Valdovinos, 429 F.3d at 928.

    We reversed the conviction, holding that no rational trier
of fact could conclude that the defendant had the specific
intent necessary to be guilty of attempted illegal reentry. We
reasoned that because attempted illegal reentry requires the
specific intent to reenter the United States without consent,
and because an “entry” into the United States requires
freedom from official restraint, a defendant “must have the
specific intent to reenter ‘free from official restraint’” in order
to be convicted of attempted reentry under § 1326. Id. at 929.
And then, crucially, we went on to hold that official restraint
“encompasses restraint by any government official, not just
officials of DHS.” Id. (emphasis added). Thus, the defendant
could not be guilty of attempted illegal reentry, because his
intention was to go to jail—where he would be subject to
“official restraint” by prison officials. Id. at 930.

    This reasoning rests on an unprecedentedly expansive
view of what constitutes “official restraint.” Until Lombera-
Valdovinos, the concept of “official restraint”—in both the
immigration and the criminal context—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. See id. at 931 (Rymer,
            UNITED STATES V. ARGUETA-ROSALES                         41

J., dissenting) (“[Official restraint] is a term of art for border
control.”). And for good reason: “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.

    Lombera-Valdovinos’s three explanations for its
expansive view of “official restraint” were unconvincing.
First, it cited Oscar for the proposition that official restraint
is not limited to “officials of DHS,” noting that the official
doing the restraining in Oscar was a “customs official[].” Id.
at 929 (majority opinion). But although the relevant official
in Oscar was not, strictly speaking, a border patrol officer, he
was working at the San Ysidro Port of Entry and clearly
functioning as part of the border control system. See Oscar,
496 F.2d at 493. Oscar thus shows, at most, that the notion
of official restraint does not depend on where precisely an
officer stands on an organizational chart. It does not imply
that restraint by any government officer, even one not
charged with any duty relating to the border, is “official
restraint.”6


  6
    Lombera-Valdovinos’s reliance on Oscar as evidence that “official
restraint” extends beyond confinement by the Department of Homeland
Security is especially curious in light of the fact that since Oscar, the
Customs Service has been combined with the Border Patrol into one
agency (U.S. Customs and Border Protection), which in turn is under the
umbrella of DHS. See 6 U.S.C. § 542 Note. I doubt it ever made sense,
in this context, to draw fine-grained distinctions between “customs
42           UNITED STATES V. ARGUETA-ROSALES

    Second, Lombera-Valdovinos quoted several cases
suggesting that any alien who cannot “go[] at large within the
United States” or “mix with the population” is under official
restraint. See Lombera-Valdovinos, 429 F.3d at 929
(emphasis omitted). But these quotations were misleading.
In each of these cases, the court being quoted was discussing
an alien who was not at liberty because he was confined by
border control. These cases do not establish that whenever
an alien is not free to “go at large within the United States,”
he is under “official restraint” as that term is used in
immigration law. Lombera-Valdovinos’s failure to appreciate
that distinction makes clear that although our § 1325 and
§ 1326 cases initially borrowed the concept of “official
restraint” from the immigration context, we have now
wrenched it from that context entirely. With each succeeding
step, culminating in Lombera-Valdovinos, we have gotten
further away from what § 1326 plausibly means.

     Finally, the Lombera-Valdovinos majority suggested that
an alien who presents himself to the authorities at the border
wanting to go to jail likely perceives no difference between
being in the custody of border authorities and being in the
custody of “some other United States jailer,” given that he is
almost certainly unfamiliar with the doctrine of “official
restraint.” Id. at 930 n.2. Hence, the majority argued, such
an alien cannot possess the intent required for attempted
illegal reentry because he does not “intend[] to avoid or
change” his status of being subject to official restraint. Id. at
930. But the initial premise of this argument is flawed. An
alien who approaches a port of entry and says he wants to go
to jail does not want to stay detained at the border forever; he


officials” working at the border and border patrol agents, but it surely does
not make sense to do so now.
            UNITED STATES V. ARGUETA-ROSALES                          43

wishes to go to a prison in the interior and become “part of
the United States population, albeit that part of the population
which is incarcerated.” Id. at 931 (Rymer, J., dissenting). By
asking to go to jail, he demonstrates that he does not perceive
the two forms of custody to be the same. See id. at 932–33
(“Lombera-Valdovinos’s articulated purpose was to go to a
real jail, not to stay in the constructive custody of
immigration officials at the border or its functional
equivalent.”).

    In short, none of Lombera-Valdovinos’s arguments for
construing “official restraint” in the way that it did stands up
to scrutiny. The case was wrongly decided, and were it not
binding on this panel, I would not follow it.

                                   III

    Lombera-Valdovinos assured us that its consequences
would be limited, explaining that its holding applied only in
the “rare set of factual circumstances where there is no
evidence of anything other than the intent to be taken into
custody.” Id. at 930 n.3 (majority opinion). But I remain
concerned about the decision’s potential ramifications, which
this case demonstrates may be far-reaching. As the majority
opinion here recognizes, nothing in Lombera-Valdovinos
limits that case’s holding to situations in which an alien walks
directly up to a border patrol agent and asks straightforwardly
to be escorted to jail. Maj. Op. at 15–16.7 On the contrary,



  7
    And even in those cases I would be concerned. Both the majority in
Lombera-Valdovinos and the majority in this case ignore the possibility
that some aliens in unfortunate circumstances—like Argueta-Rosales—
may indeed elect to come into the U.S. with a specific intent to reside in
44          UNITED STATES V. ARGUETA-ROSALES

even 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.

     The majority here helpfully tries to address these potential
concerns by clarifying that in an attempted illegal reentry
case, “[t]he government must prove only that [the defendant]
had a specific intent to enter the United States free from
official restraint, not that this was his only purpose.” Maj.
Op. at 16–17. It predicts that a defendant who “actually
intend[s] to sneak into the country, and change[s] his plans
only when he [i]s spotted” will be convicted of attempted
illegal reentry. I certainly hope that the majority is right. But
as the majority reminds us, it is the government’s burden in
a § 1326 case to “prove[] unlawful intent beyond a reasonable
doubt.” Id. at 16. There surely will be some § 1326 cases in
which defendants’ dubious claims that they desired to go to
jail are nonetheless 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.” See Lombera-Valdovinos, 429 F.3d at 933 (Rymer,
J., dissenting). This cannot possibly be how § 1326 is meant
to work.

                             * * *

    Lombera-Valdovinos 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,


U.S. prisons.   Under Lombera-Valdovinos, they may do so without
consequence.
          UNITED STATES V. ARGUETA-ROSALES                45

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. This is a strange state of affairs
indeed. And we could and should have avoided it by holding
in Lombera-Valdovinos that the specific intent required for
attempted illegal reentry is the intent to reenter the United
States free from restraint by authorities at the border.

    The Lombera-Valdovinos panel didn’t choose that course,
so I am compelled to concur in the judgment here. But I do
so under protest. I would grant Argueta-Rosales his wish and
allow him to go to jail.
