931 F.3d 944

BYBEE, Circuit Judge, concurring:
I write separately to note my sympathy for the government's position in this case. For the reasons given in the opinion for the court, the government's reading of 8 U.S.C. § 1325(a)(2) is wrong. But I understand its impulse to try to charge illegal entry under § 1325(a)(2) rather than under § 1325(a)(1). As I have previously explained, much of our illegal-entry and illegal-reentry jurisprudence is a mess. See United States v. Argueta-Rosales , 819 F.3d 1149, 1162-71 (9th Cir. 2016) (Bybee, J., concurring in the judgment and dissenting as to everything else).
The challenge for the government is that we have made § 1325(a)(1) -which makes it a crime for an alien to enter or attempt to enter the United States outside an open port of entry-increasingly difficult to enforce. There are two problems. The first problem stems largely from our understanding of the official restraint doctrine, which "has reached an absurd position." Id. at 1162. To prove that an alien has "entered" the United States, the government must prove not only that the alien crossed into the United States, but also that the alien was at some point "free from official restraint." Id. We consider an alien under "official restraint" so long as government surveillance cameras capture the alien crossing into the country, or a border patrol agent who observed the crossing through binoculars is able to maintain continuous observation of the alien while pursuing him or her. This has led us to "some very strange 'how-many-angels-are-dancing-on-the-head-of-a-pin' inquiries." See id. at 1165-67 (discussing United States v. Pacheco-Medina , 212 F.3d 1162 (9th Cir. 2000), and its progeny).
The second problem is that to prove that an alien "attempted illegal entry or reentry," the government must prove that the alien had "the specific intent to reenter 'free from official restraint' " by "any government official." Id. at 1168-69 (quoting United States v. Lombera-Valdovinos , 429 F.3d 927, 929 (9th Cir. 2005) ). Under this rule, an alien who "crosses into the United States surreptitiously and outside a port of entry," but who never achieves freedom from official restraint, cannot be convicted of attempted illegal entry or reentry as long as the alien "tells border control that he came in hopes of remaining under restraint by any government official-even in a federal prison far from the border-once in the United States." Id. at 1162. We have overturned at least two convictions where the aliens, who were captured in the act of crossing the border outside a port of entry, told border officials that they were entering the country in the hopes of being incarcerated. Since the aliens wished not to be free of official restraint, the government couldn't prove that they intended to be free of official restraint. See id. at 1158 (reversing and remanding for a new trial where the trier of fact might have concluded that the alien was delusional and seeking protection when he climbed the 10-foot primary fence); Lombera-Valdovinos , 429 F.3d at 928-29 (reversing the conviction where the alien crossed the primary fence and told the official he wished to go to jail). As I pointed out in Argueta-Rosales , this "has left our law stuck in a catch-22 worthy of Joseph Heller: Aliens who cross the border hoping to enter the United States free of restraint must be restrained, while aliens who cross hoping to be restrained by the United States must be freed. Under [this] regime, no one gets what he wants, but some people go to jail, while everyone else goes home." 819 F.3d at 1171.
In light of this doctrinal minefield, I suspect that the government is charging aliens who would otherwise be charged with entering at a non-designated time or place under § 1325(a)(1) with eluding inspection under § 1325(a)(2), which (according to the government) does not suffer from the infirmities of our "official restraint" and "specific intent to enter free from official restraint" law. Today we require the government to march in a straight line when it charges violations of § 1325(a). But we should also clean up our own mess under § 1325(a)(1) at the first opportunity.

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