United States of America v. Rafael Aldana

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAFAEL ALDANA,
Defendant-Appellant.
No. 16-50372
D.C. No.
3:15-cr-03101-
BGS-DMS-1
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JULIO CESAR SUAREZ,
Defendant-Appellant.
No. 16-50385
D.C. No.
3:15-cr-03156-
RBB-AJB-1
OPINION
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Argued and Submitted September 1, 2017
Pasadena, California

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UNITED STATES V. ALDANA 2
Filed December 29, 2017
Before: William A. Fletcher and Sandra S. Ikuta, Circuit
Judges, and Sarah Evans Barker,* District Judge.
Opinion by Judge Ikuta
SUMMARY**
Criminal Law
Affirming misdemeanor convictions under 8 U.S.C.
§ 1325(a)(1) for attempting to enter the United States “at any
time or place other than as designated by immigration
officers,” the panel held that a place “designated by
immigration officers” refers to a specific immigration facility,
not an entire geographic area.
* The Honorable Sarah Evans Barker, United States District Judge for
the Southern District of Indiana, sitting by designation.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. ALDANA 3
COUNSEL
Doug Keller (argued), Federal Defenders of San Diego Inc.,
San Diego, California, for Defendants-Appellants.
Daniel E. Zipp (argued), Assistant United States Attorney;
Helen H. Hong, Chief, Appellate Section, Criminal Division;
Alana W. Robinson, Acting United States Attorney; United
States Attorney’s Office, San Diego, California; for Plaintiff-
Appellee.
OPINION
IKUTA, Circuit Judge:
Rafael Aldana and Julio Cesar Suarez were each
convicted of the misdemeanor offense of “attempt[ing] to
enter the United States at any time or place other than as
designated by immigration officers,” in violation of 8 U.S.C.
§ 1325(a)(1). While not disputing that they entered the
United States miles away from any established port of entry
facility, Aldana and Suarez argue that because the applicable
regulations designate entire geographic regions as ports of
entry, there was insufficient evidence that they had violated
the statute. We conclude that a place “designated by
immigration officers” for purposes of § 1325(a)(1) refers to
a specific immigration facility, not an entire geographic area,
and therefore affirm the district court.
I
On November 28, 2015, a border patrol surveillance agent
observed Rafael Aldana climbing over the fence separating

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UNITED STATES V. ALDANA 4
the United States and Mexico. A second agent found him
hiding in the brush approximately 400 yards north of the
border and two miles from the nearest port of entry facility at
Otay Mesa, California. Aldana admitted to climbing over the
fence and told the border patrol officer that he was a citizen
of Mexico and had no documentation that would allow him
to enter the United States on a legal basis. Aldana was
charged with the misdemeanor offense of “attempt[ing] to
enter the United States at any time or place other than as
designated by immigration officers,” in violation of 8 U.S.C.
§ 1325(a)(1).1
At a bench trial before a magistrate judge, Aldana moved
for a judgment of acquittal on the ground that the government
failed to prove that he had entered at a place not designated
by immigration officers. The magistrate judge rejected
Aldana’s argument and the district court affirmed. Aldana
was sentenced to time served.
Julio Cesar Suarez has a similar story. On November 26,
2015, a border patrol officer discovered Suarez lying down
1 8 U.S.C. § 1325(a)(1) states:
(a) Improper time or place; avoidance of
examination or inspection; misrepresentation and
concealment of facts
Any alien who (1) enters or attempts to enter the United
States at any time or place other than as designated by
immigration officers . . . shall, for the first commission
of any such offense, be fined under Title 18 or
imprisoned not more than 6 months, or both, and, for a
subsequent commission of any such offense, be fined
under Title 18, or imprisoned not more than 2 years, or
both.

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UNITED STATES V. ALDANA 5
among the tumbleweeds in an area located north of the border
fence and about two miles east of the Otay Mesa port of entry
facility. Suarez admitted that he was a citizen of Mexico and
did not have any documents giving him a lawful basis for
entering the United States. Like Aldana, Suarez was also
charged with “attempt[ing] to enter the United States at any
time or place other than as designated by immigration
officers,” in violation of 8 U.S.C. § 1325(a)(1). At his bench
trial, Suarez raised the same challenge to the sufficiency of
the evidence as Aldana had raised, which was similarly
rejected. Suarez received a four-month sentence.
Aldana and Suarez both filed timely notices of appeal and
subsequently moved to consolidate their cases. On appeal,
appellants continue to argue that the government adduced
insufficient evidence to prove that they had attempted to enter
at a place other than as designated by immigration officers.
According to appellants, a “place other than as designated by
immigration officers” for purposes of § 1325(a)(1) means a
place other than at one of the ports of entry listed in 8 C.F.R.
§ 100.4(a). Section 100.4(a) of the Code of Federal
Regulations states that “the following places are hereby
designated as Ports-of-Entry for aliens arriving by any means
of travel other than aircraft.” 8 C.F.R. § 100.4(a). Under
“District No. 39—San Diego, California,” the regulation lists
“Otay Mesa, CA.” Id. Appellants argue that “Otay Mesa”
refers to the entire area in south San Diego, extending to the
Mexico border, which is commonly referred to as Otay Mesa,
rather than to the Otay Mesa Port of Entry facility. In support
of this argument, appellants note that § 100.4(a) sometimes

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UNITED STATES V. ALDANA 6
designates specific port facilities within some cities,2 but in
other cases lists only an entire city or geographic area.3
Because immigration officials knew how to designate
particular facilities in § 100.4(a), appellants argue, when the
officials mention a geographic area instead of a specific
facility, we must conclude that they intended to designate the
entire area as a port of entry. When, as here, the regulations
designate an entire geographic area as a port of entry,
appellants contend, an alien who entered that area at any
point along the border does not violate § 1325(a)(1).
II
We review challenges to the sufficiency of evidence,
including questions of statutory interpretation, de novo.
United States v. Roach, 792 F.3d 1142, 1144 (9th Cir. 2015).
“There is sufficient evidence to support a conviction if,
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Id. (quoting United States v. Duran, 189 F.3d 1071, 1078 (9th
Cir. 1999)). Although Aldana and Suarez are no longer in
custody, the case is not moot because collateral consequences
are presumed to stem from a criminal conviction. See United
States v. Juvenile Male, 564 U.S. 932, 936 (2011). The
2 For example, the regulations list: “Boston, MA (the port of Boston
includes, among others, the port facilities at Beverly, Braintree, Chelsea,
Everett, Hingham, Lynn, Manchester, Marblehead, Milton, Quincy,
Revere, Salem, Saugus, and Weymouth, MA).” 8 C.F.R. § 100.4(a).
3 For example, the regulations list “District No. 11—Kansas City,
Missouri; Class A: Kansas City, MO.” 8 C.F.R. § 100.4(a).

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UNITED STATES V. ALDANA 7
district court had jurisdiction under 18 U.S.C. § 3402. We
have jurisdiction under 28 U.S.C. § 1291.
In order to convict a defendant of a violation of
§ 1325(a)(1), the government must prove beyond a
reasonable doubt that the individual was an “alien who . . .
enter[ed] or attempt[ed] to enter the United States at any time
or place other than as designated by immigration officers.”
8 U.S.C. § 1325(a)(1). Neither the statute nor the regulations
provide a definition of the phrase “place other than as
designated by immigration officers.” Nevertheless, the
meaning of this phrase can be discerned by reading it in its
historical context.
A
The Immigration and Nationality Act (INA) addresses
how an alien may legally enter the country and establishes
penalties for unauthorized entry, see 8 U.S.C. §§ 1321–1330.
Section 1325(a)(1) is one of the penalty provisions. The
predecessor to this statute, originally enacted in 1917,
prohibited unauthorized entry “by water at any time or place
other than as designated by immigration officials, or by land
at any place other than one designated as a port of entry for
aliens” by specified immigration officials. Immigration Act
of 1917, Pub. L. No. 64-301, § 19, 39 Stat. 874, 889.4 In
4 The applicable language stated:
[A]ny alien who shall have entered the United States by
water at any time or place other than as designated by
immigration officials, or by land at any place other than
one designated as a port of entry for aliens by the
Commissioner General of Immigration, or at any time
not designated by immigration officials, or who

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UNITED STATES V. ALDANA 8
1929, Congress decided there was “[n]o good reason” for
“perpetuating the distinction . . . between entering by water
or by land,” and so the statute was amended to eliminate this
distinction and impose criminal penalties on aliens who
unlawfully entered the United States “in any manner.” H.R.
Rep. No. 70-2418, at 4 (1929). In merging the two means of
entry, the statute eliminated the reference to “port of entry,”
and provided that “[a]ny alien who hereafter enters the United
States at any time or place other than as designated by
immigration officials,” shall be guilty of a misdemeanor. Act
of Mar. 4, 1929, Pub. L. No. 70-1018, § 2, 45 Stat. 1551,
1551. This language closely tracks the current version of
§ 1325(a)(1).5
Regulations subsequently promulgated by the
Immigration and Naturalization Service (INS) in 1957 to
entering without inspection, shall, upon the warrant of
the Secretary of Labor, be taken into custody and
deported.
Immigration Act of 1917, Pub. L. No. 64-301, §19, 39 Stat. 874, 889.
5 The statute stated:
Any alien who hereafter enters the United States at any
time or place other than as designated by immigration
officials, or eludes examination or inspection by
immigration officials, or obtains entry to the United
States by a willfully false or misleading representation
or the willful concealment of a material fact, shall be
guilty of a misdemeanor and, upon conviction, shall be
punished by imprisonment for not more than one year
or by a fine of not more than $1,000, or by both such
fine and imprisonment.
Act of Mar. 4, 1929, Pub. L. No. 70-1018, § 2, 45 Stat. 1551, 1551.

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UNITED STATES V. ALDANA 9
explain how an alien could legally enter the country, see
8 C.F.R. pt. 235 (1957), reintroduced the term “port of entry,”
see 8 C.F.R. § 235.1 (1957). In explaining how an alien
could legally enter the United States, § 235.1 provided that an
alien “shall apply in person at a place designated as a port of
entry for aliens at a time when the immigration office at the
port is open for inspection.” Id.
In 1967, the INS promulgated regulations to describe its
organization and “indicate the established places” where it
had offices, including specific ports of entry. See Immigration
and Naturalization Service Statement of Organization,
32 Fed. Reg. 9616, 9616–17 (July 4, 1967). Section 100.4 set
out the “regions, districts, suboffices and Border Patrol
sectors,” in which INS officials were located. 8 C.F.R.
§ 100.4 (1967). The regulation also designated specified
places as ports of entry “for aliens arriving by any means of
travel other than aircraft.” Id. § 100.4(c)(2). Certain INS
suboffices were maintained at Class A ports of entry listed in
the regulations, while the regulations designated Class B
ports of entry “for aliens who at the time of applying for
admission are lawfully in possession of valid resident aliens’
border-crossing identification cards.” Id. Class C ports of
entry were limited to crewmen. Id.
After issuing these regulations, the INS updated § 235.1
to incorporate the list of ports of entry in § 100.4(a) by
reference. The amended § 235.1 provided that “[a]pplication
to enter the United States shall be made in person to an
immigration officer at a U.S. port of entry enumerated in Part
100 of this chapter at a time when the immigration office at
the port is open for inspection.” 8 C.F.R. § 235.1(a) (1968).
Because this revision to § 235.1 required aliens to make an
in-person application to an immigration officer at a port of

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UNITED STATES V. ALDANA 10
entry, and did not differentiate between ports of entry listed
in § 100.4(a) that named a specific facility and those that
named a geographic area, it confirms that INS used the term
“port of entry” to refer to specific facilities. Although
§ 235.1(a) has subsequently been amended multiple times, the
requirement of in-person application has not changed. Under
the current version of § 235.1(a), “[a]pplication to lawfully
enter the United States shall be made in person to an
immigration officer at a U.S. port-of-entry when the port is
open for inspection, or as otherwise designated in this
section.” 8 C.F.R. § 235.1(a) (2017).
After the terrorist attacks of September 11, 2001,
Congress passed several acts aimed at enhancing national
security. One such act, the Homeland Security Act,
eliminated the INS and transferred its immigration functions
to the newly created Department of Homeland Security
(DHS). 6 U.S.C. §§ 291, 202(3). After the INS was
eliminated (and therefore no longer had official facilities),
DHS revised § 100.4 to remove references to INS offices and
suboffices. See Removing References to Filing Locations
and Obsolete References to Legacy INS, 74 Fed. Reg. 26,933,
26,933 (June 5, 2009). As a result, the current version of
§ 100.4(a) no longer states that INS suboffices are located at
Class A ports of entry, and therefore no longer expressly links
the list of ports of entry to specific INS facilities.
Nevertheless, there is no indication that DHS intended to
change the meaning of “port of entry” to refer to geographical
areas, as opposed to specific facilities where an alien could
apply for entry. Rather, the U.S. Customs and Border
Protection now has the authority to inspect individuals and

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UNITED STATES V. ALDANA 11
goods arriving at ports of entry.6 See U.S. Customs and
Border Protection, About CBP, (Nov. 21, 2016)
https://www.cbp.gov/about.
We read the current version of § 1325(a)(1) in light of this
historical context. Because an alien who wants to enter the
United States lawfully must submit an application at a
designated port of entry when it is open for inspection per
8 C.F.R. § 235.1(a), a “port of entry” necessarily includes a
physical facility that is staffed by immigration officials who
can accept these applications. Section 1325(a)(1) imposes
penalties on an alien who fails to follow the procedure for
lawful entry set forth in § 235.1(a), and instead enters at a
“place other than as designated by immigration officers.”
8 U.S.C. § 1325(a)(1). Reading § 1325(a)(1) and § 235.1
together, we interpret the phrase a “place other than as
designated by immigration officers” in § 1325(a)(1) as
referring to any place other than immigration facilities at
designated ports of entry, as contemplated by § 235.1(a).
In light of our interpretation of § 1325(a)(1), we reject
Aldana and Suarez’s argument that a place designated by
immigration officers includes entire geographic areas listed
in § 100.4(a) when the regulations do not identify a specific
physical facility. As explained above, § 100.4(a) identified
ports of entry as locations where the INS has facilities, and
can accept applications for admission. Moreover, because
6 The preamble to the 2009 revision states that the designation of ports
of entry is within the authority of the U.S. Customs and Border Protection
and is “generally governed by 19 C.F.R. § 101.3.” Removing References
to Filing Locations, 74 Fed. Reg. at 26,934. Section 101.3 designates
ports of entry for the entry of merchandise and vessels, not aliens, and so
is not applicable to the INA. See 19 C.F.R. § 101.1.

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UNITED STATES V. ALDANA 12
§ 100.4(a) lists specific port facilities only in larger cities, the
appellants’ argument would lead to the “absurd [and]
irrational result,” United States v. LKAV, 712 F.3d 436, 440
(9th Cir. 2013), that an alien could enter anywhere in the
United States that was not a large city, including along the
entire San Diego border, without facing criminal penalties
under § 1325(a)(1). We avoid giving such irrational
interpretations to regulations where, as here, a more plausible
interpretation exists. Id.7
B
In this case, there is no dispute that Aldana and Suarez did
not enter the United States through a facility where
immigration officials could accept applications for entry,
which is the method for lawful entry permitted by § 235.1(a).
Therefore, “viewing the evidence in the light most favorable
to the prosecution, [a] rational trier of fact could have found”
beyond a reasonable doubt that Aldana and Suarez attempted
to enter the United States in “a place other than as designated
by immigration officers,” in violation of § 1325(a)(1). See
Roach, 792 F.3d at 1144 (quoting Duran, 189 F.3d at 1078).
Their convictions must stand.
AFFIRMED.
7 Appellants also argue that even if the common meaning of the term
“port of entry” is a port facility, the INS intended to give the term a
specialized meaning, because § 100.4(a) occasionally capitalizes “Port of
Entry” and lists geographic areas as well as facilities. Because we have
concluded that the regulations use the term “port of entry” to mean a
facility where an immigration official could accept an application, a
definition that is consistent with the common usage of the term, we reject
this argument.

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