931 F.3d 944

FERNANDEZ, Circuit Judge, dissenting:
As the majority points out, Corrales argues that his conviction should be reversed because the evidence was insufficient to convict him of the misdemeanor of "elud[ing] examination or inspection by immigration officers." 8 U.S.C. § 1325(a)(2).
The district court determined that the elements of the crime spelled out in § 1325(a)(2) were: (1) the accused was an alien, and (2) the accused knowingly eluded examination or inspection by immigration officers. It then held that the evidence proved beyond a reasonable doubt that Corrales had committed that offense. Corrales asserts that the district court erred because, as he sees it, the government was required to prove that he either eluded inspection at a port of entry, or at least, eluded inspection "by an immigration officer at the moment he entered the United States." In that respect, he insists that in order to "elude," the alien must have snuck through a port of entry, or if the alien entered the country elsewhere, "snuck by" an officer who was on the scene at the moment of entry. Because there was no evidence of those elements, he argues, his conviction cannot stand. My colleagues agree; I do not.
In interpreting statutes "[t]he starting point of [the] inquiry is the language of the statute itself." United States v. Cabaccang , 332 F.3d 622, 625 (9th Cir. 2003) (en banc). In so doing, we use canons of construction. Those canons:
help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: "judicial inquiry is complete."
Conn. Nat'l Bank v. Germain , 503 U.S. 249, 253-54, 112 S. Ct. 1146, 1149, 117 L. Ed. 2d 391 (1992) (internal citations omitted). When I apply those canons and rules here, it is immediately apparent to me that the simple words of § 1325(a)(2) will not bear Corrales' attempt to insert the limiting phrase "at a port of entry." Nothing in the enactment allows us to add that language to that statute's wording. In fact, if that limitation were intended, Congress would have included it just as it had included "at any time or place other than as designated by immigration officers" in § 1325(a)(1). Cf . Nken v. Holder , 556 U.S. 418, 430, 129 S. Ct. 1749, 1759, 173 L. Ed. 2d 550 (2009). It did not do so.
Corrales' other attempt to restrict the reach of § 1325(a)(2) has more purchase, but also fails. He argues that "elude" requires that the alien must cunningly or slyly slip or creep by (as he puts it, sneak by) an opponent. But, as I see it, all the language means is that the alien has avoided or evaded those who would address him or his presence. I do agree that an alien who seeks to illegally cross the borders of the United States will often show some initiative, resourcefulness, desire to evade, and even some degree of what can be seen as slyness or cunning, in an attempt to enter unnoticed. In fact, if an alien desires to cross the United States border without being stopped or detected by barriers (natural or otherwise), or technological devices, or our alert immigration and border patrol officers, some of the characteristics captured by the word "elude" will be in that person's makeup and plans. But that just emphasizes the good sense of Congress when it used that expansive word; it does not indicate that any of those possibilities restricts the meaning of the statutory language or makes it ambiguous. Put otherwise, it simply means that the alien's characteristics and plans have enabled him to cross into the United States illegally and without inspection, despite all of this country's efforts to prevent that eventuality. As we have said, "[b]ecause these examinations and inspections are to take place at the time of entry, a fixed point in time, this suggests that the offense described by § 1325(2) is consummated at the time an alien gains entry through an unlawful point and does not submit to these examinations." United States v. Rincon-Jimenez , 595 F.2d 1192, 1193-94 (9th Cir. 1979). In short, Corrales' attempt to restrict the reach of § 1325(a)(2) 's language does not persuade me.
But, says Corrales, if we do not restrict § 1325(a)(2) as he desires, the result will be that we have rendered § 1325(a)(1) redundant and surplus. That is so, he insists, because if an alien could be convicted under § 1325(a)(2) for crossing the border at a place which is not a designated port of entry or a place where no government officer is close at hand, any prosecution under § 1325(a)(1) would necessarily be encompassed by § 1325(a)(2), which would make the § 1325(a)(1) language surplusage. That argument is interesting, but in my view it is not sufficient to earn Corrales the obsidional crown.
As I have already noted, if the statutory language is not truly ambiguous, that ends the matter and we need not go on to consider the canon that seeks to avoid redundancy. See Conn. Nat'l Bank , 503 U.S. at 253-54, 112 S. Ct. at 1149. Moreover, even if there is redundancy, I am not gallied by that fact. It is not as if redundancy across statutes is a rarity. See id . at 253, 112 S. Ct. at 1149 ; see also Marx v. Gen. Revenue Corp. , 568 U.S. 371, 385, 133 S. Ct. 1166, 1177, 185 L. Ed. 2d 242 (2013). I do recognize that it is unusual to find redundancy within a single statutory section, but even then I see no basis for engaging in judicial legislation to artificially force a restriction onto a statute that its language does not encompass. Furthermore, it is probable that Congress acted with caution because it was attempting to repair existing immigration laws which fostered "[i]nequities, gaps, loopholes, and lax practices [that had] become apparent through the years." H.R. Rep. No. 82-1365, at 27 (1952). "In any event, our hesitancy to construe statutes to render language superfluous does not require us to avoid surplusage at all costs." United States v. Atl. Research Corp. , 551 U.S. 128, 137, 127 S. Ct. 2331, 2337, 168 L. Ed. 2d 28 (2007). In this particular area, Congress would have seen the need for caution because, for example, the seemingly plain word "enters" that appears in § 1325(a)(1) could take on somewhat arcane legal meanings. As it turns out, those legal meanings have created some complications and exceptions in a statutory regime which is intended to impose penal sanctions upon those who illegally cross the borders of this country. That would explain Congress' use of statutory language that, if somewhat redundant, is not actually surplusage in a pejorative sense. We can assume that Congress sought to assure relatively complete coverage of the illegal border-crossing problem, despite the unforeseen vagaries and vicissitudes of changing legal and physical conditions in border protection and in methods of evading that protection. In other words, canons of interpretation are meant to help us carry out congressional purposes, not to obstruct those purposes. By the way, without undue effort one can think of situations where an alien's illegal crossing of our borders can fall into one or the other of the provisions, but Congress did not need to depend on the strength or weakness of the interpretive prowess of one court or another. If § 1325(a)(1) and § 1325(a)(2) amount to a form of overkill, so be it; they are what Congress provided.
Thus, again, I would reject Corrales' assertion that more evidence was required to convict him under § 1325(a)(2). Instead, I would affirm, despite Corrales' earnest, if Daedalian, argument that he has discovered some newly hatched elements of § 1325(a)(2). In my opinion, those hatchlings are not actually elements of the offense at all. They did not have to be proved beyond a reasonable doubt in order to convict Corrales. Therefore, I respectfully dissent.
Hereafter, unless otherwise indicated, section numbers refer to sections of Title 8 of the United States Code.
Hereafter, I will use the word "inspection" to refer to both inspection or examination.
See United States v. Aldana , 878 F.3d 877, 880, 882 (9th Cir. 2017) cert. denied, --- U.S. ----, 139 S. Ct. 157, 202 L. Ed. 2d 96 (2018).
The majority seeks to support its position by pointing to Congress' knowledge of an earlier Canadian statute that provided: "Any person ... who at a port of entry eludes examination by an officer, or Board of Inquiry, ... shall be guilty of an offence ...." Immigration Act, 1910, 9 & 10 Edw. 7 c. 27, § 33(7) (Eng.), reprinted in R.S.C. 1927, c. 93 (Can.); see also Restriction of Immigration: Hearings Before the H. Comm. on Immigration & Naturalization on H.R. 5, H.R. 101, and H.R. 561, 68th Cong. 680 (1924) (text of Canadian statute); Proposed Deportation Legislation: Hearings Before the H. Comm. on Immigration & Naturalization , 68th Cong. 8-9 (1925) (statement of Rep. Elton Watkins, Member, H. Comm. on Immigration & Naturalization, regarding origin of language). But that knowledge points in the other direction. Congress ultimately adopted much of the Canadian provision's language, including the word "eludes." See Act of Mar. 4, 1929, Pub. L. No. 70-1018, § 2, 45 Stat. 1551, 1551. However, Congress omitted the phrase "at a port of entry"-essentially the very phrase that the majority now inserts, even though Congress has never seen fit to return the phrase to the statutory scheme.
See Encarta World English Dictionary 582 (1999) ("to escape from or avoid somebody or something by cunning, skill, or resourcefulness").
See 1 The Compact Edition of the Oxford English Dictionary 847 (1st ed. 1971) ("[t]o evade compliance with or fulfilment of (a law, order, demand, request, obligation, etc.)"); 3 The Oxford English Dictionary 97 (1933) (same); 3 A New English Dictionary on Historical Principles pt. I at 97 (James A. H. Murray & Henry Bradley eds., Oxford, The Clarendon Press 1891) (same).
See United States v. Oscar , 496 F.2d 492, 494 (9th Cir. 1974). In the situation at hand, the aliens in question were clever enough to wrap blankets around their feet to conceal their tracks.
See Webster's Third New International Dictionary 738 (Philip Babcock Gove ed., 1986) ("to escape the notice or perception of"); see also Webster's New Collegiate Dictionary 267 (2d ed. 1951).
See Marinello v. United States , --- U.S. ----, 138 S. Ct. 1101, 1107, 200 L. Ed. 2d 356 (2018).
See Lorillard v. Pons , 434 U.S. 575, 580-81, 98 S. Ct. 866, 870, 55 L. Ed. 2d 40 (1978).
See Ex parte Chow Chok , 161 F. 627, 630-31 (C.C.N.D.N.Y.), aff'd sub nom. Chow Chok v. United States , 163 F. 1021 (2d Cir. 1908) (mem.) (per curiam); see also Kaplan v. Tod , 267 U.S. 228, 230-31, 45 S. Ct. 257, 257-58, 69 L. Ed. 585 (1925).
See, e.g. , United States v. Vazquez-Hernandez , 849 F.3d 1219, 1228 (9th Cir. 2017) ; United States v. Argueta-Rosales , 819 F.3d 1149, 1158-59 (9th Cir. 2016) ; United States v. Cruz-Escoto , 476 F.3d 1081, 1085-86 (9th Cir. 2007) ; United States v. Lombera-Valdovinos , 429 F.3d 927, 929-30 (9th Cir. 2005) ; United States v. Hernandez-Herrera , 273 F.3d 1213, 1218-19 (9th Cir. 2001) ; United States v. Pacheco-Medina , 212 F.3d 1162, 1164 (9th Cir. 2000).

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