FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-50206 Plaintiff-Appellee, D.C. No. v. 3:18-mj-03051-GPC-1 ORACIO CORRALES-VAZQUEZ, Defendant-Appellant. OPINION Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding Argued and Submitted June 12, 2019 Pasadena, California Filed July 24, 2019 Before: Ferdinand F. Fernandez, Kim McLane Wardlaw, and Jay S. Bybee, Circuit Judges. Opinion by Judge Bybee; Concurrence by Judge Bybee; Dissent by Judge Fernandez 2 UNITED STATES V. CORRALES-VAZQUEZ SUMMARY* Criminal Law The panel reversed a misdemeanor conviction for eluding examination or inspection by immigration officers in violation of 18 U.S.C. § 1325(a)(2). The panel held that an alien who crosses into the country at a non-designated time or place is not guilty under § 1325(a)(2). Rather, to convict a defendant under § 1325(a)(2), the government must prove that the alien’s criminal conduct occurred at a time and place designated for “examination or inspection by immigration officers”—i.e., at a port of entry open for inspection. Because the government failed to make that showing, the panel reversed the conviction. Concurring, Judge Bybee wrote separately to note his sympathy for the government’s position, considering the difficulty caused by the court’s jurisprudence regarding § 1325(a)(1), which makes it a crime for an alien to enter the United States outside an open port of entry. Dissenting, Judge Fernandez wrote that he would affirm because the elements of § 1325(a)(2) are that the accused was an alien and that he knowingly eluded examination or inspection by an immigration officer, and there is no requirement that the accused either eluded inspection at a port * 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. CORRALES-VAZQUEZ 3 of entry, or, at least, eluded inspection by an immigration officer at the moment he entered the United States. COUNSEL Doug Keller (argued), Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant. D. Benjamin Holley (argued), Assistant United States Attorney; Helen H. Hong, Chief, Appellate Division; Robert S. Brewer Jr., United States Attorney; United States Attorney’s Office, San Diego, California; for Plaintiff- Appellee. OPINION BYBEE, Circuit Judge: Federal law makes it a crime for “[a]ny alien” to “enter[] or attempt[] to enter the United States at any time or place other than as designated by immigration officers,” 8 U.S.C. § 1325(a)(1), or to “elude[] examination or inspection by immigration officers,” id. § 1325(a)(2). In this case, we consider whether an alien who crosses into the country at a non-designated time or place is guilty of “elud[ing] examination or inspection by immigration officers” under § 1325(a)(2). We hold that the answer is no. To convict a defendant under § 1325(a)(2), the government must prove that the alien’s criminal conduct occurred at a time and place designated for “examination or inspection by immigration officers”—i.e., at a port of entry that is open for inspection. ...
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