Split 9th Circuit panel rules crossing border illegally doesn’t always mean eluding officers

The 9th U.S. District Court of Appeals reversed a misdemeanor conviction of an immigrant who crossed the border illegally, deeming the charge of "elud[ing] examination of inspection by immigration officers" to only be valid at a port of entry.

Judge Jay S. Bybee authored the decision for the three-judge panel, which included Judges Kim McLane Wardlaw and Ferdinand F. Fernandez. The 2-1 opinion specified that since the government could not prove the defendant eluded officers at the port of entry, he could not be charged under the statute. United States v. Corrales-Vazquez

Bybee, in a special concurrence in addition to his opinion, suggested the difficulty in proving an individual entered illegally somewhere along the 1,933-mile border with Mexico, a separate misdemeanor charge, is likely what led to charges of eluding officers. He sympathized with government prosecutors, writing, "Much of our illegal-entry and illegal-reentry jurisprudence is a mess."

"Today we require the government to march in a straight line when it charges violations of [eluding examination]," Bybee wrote. "But we should also clean up our own mess under [illegal entry] at the first opportunity."

In dissenting, Fernandez took a broader interpretation of the word "eluding," arguing that by entering the country through any channel outside a port of entry showed a clear intention to evade officials.

"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," Fernandez wrote. "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."

-- Paula Lehman-Ewing