United States of America v. Magdaly Suleydy Perez- Velasquez

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAGDALY SULEYDY PEREZ-
VELASQUEZ,
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JENIFER MILADIS ALVARADO-DIAZ,
Defendant - Appellant.
No. 19-2118
No. 19-2134
_________________________________
Appeals from the United States District Court
for the District of New Mexico
(D.C. No. 2:19-PO-00044-RB-KRS-1)
(D.C. No. 2:18-PO-04579-RB-GJF-1)
_________________________________
Gia McGillivray, Assistant Federal Public Defender (Margaret Katze, Federal Public
Defender, and Stephanie Lynne Wolf, Assistant Federal Public Defender, with her on the
briefs), Las Cruces, New Mexico, for Defendants-Appellants.
Dustin C. Segovia, Assistant United States Attorney (Fred J. Federici, United States
Attorney, with him on the briefs), Las Cruces, New Mexico, for Plaintiffs-Appellees.
FILED
United States Court of Appeals
Tenth Circuit
October 25, 2021
Christopher M. Wolpert
Clerk of Court
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_________________________________
Before TYMKOVICH, Chief Judge, HARTZ, and MORITZ, Circuit Judges.
_________________________________
TYMKOVICH, Chief Judge, Circuit Judge.
_________________________________
In this consolidated appeal, Jenifer Miladis Alvarado-Diaz and Magdaly
Suleydy Perez-Velasquez appeal the district court’s affirmance of their convictions
for entering the United States in violation of 8 U.S.C. § 1325(a)(1). They contend
they did not illegally “enter” the country, within the meaning of § 1325(a)(1),
because they were under continuous surveillance and because they did not intend to
evade inspection. We reject these arguments and affirm the judgments of the district
court.
I. Background
The relevant facts are not in dispute, and they are substantially similar for each
Defendant. Alvarado and Perez crossed the U.S.-Mexico border into New Mexico by
walking around a fence, miles away from the nearest designated port of entry.
Alvarado was stopped by a border patrol agent after she made it about 180 yards past
the border, and a border patrol agent saw Perez just as she walked into the country.
Each was detained. Alvarado and Perez admitted to the agents that they were
nationals of El Salvador and Guatemala, respectively, and had no authorization to
enter the country. They were arrested and charged with illegal entry in violation of 8
U.S.C. § 1325(a)(1). Section 1325(a)(1) provides criminal punishment to “any alien
(1) who enters or attempts to enter the United States at any time or place other than
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as designated by immigration officers . . . .” 8 U.S.C. § 1325(a)(1). They then faced
bench trials before magistrate judges, where they were convicted.
Alvarado and Perez appealed their convictions in the New Mexico District
Court, contending their convictions should be overturned because they had not
illegally “entered” the country in violation of the statute. They contended “enter” is
a term of art that requires more than a physical intrusion; it also requires “freedom
from official restraint” and “inspection or intentional evasion of inspection.”
Alvarado ROA 162; Perez ROA 278.
The district court affirmed the convictions because, even assuming freedom
from official restraint is required for an “entry,” the Defendants were not under
official restraint. The Defendants argued they were under official restraint because
they had been continuously surveilled, but the court noted that continuous
surveillance alone does not equate to restraint.
On appeal, the Defendants make similar arguments.
II. Analysis
In requesting that we overturn their convictions, Alvarado and Perez urge us to
reconsider our decision in United States v. Gaspar-Miguel, 947 F.3d 632 (10th Cir.
2020), and hold that (1) “enter” requires freedom from official restraint and
inspection or intentional evasion of inspection, and (2) continuous surveillance alone
can constitute official restraint. See 947 F.3d at 632. We decline to do so.
Our court and other circuits have aptly traced the history and development of
the freedom from official restraint doctrine for “entry,” so we will be brief in our
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review. See Gaspar-Miguel, 947 F.3d at 633–34; see United States v. Argueta-
Rosales, 819 F.3d 1149 (9th Cir. 2016) (Bybee, J., concurring in the judgment only).
The doctrine is a legal fiction that began in the early 1900s in the civil immigration
context, and it was used to determine whether procedural and substantive rights
would be apportioned to foreign nationals. Argueta-Rosales, 819 F.3d at 1162–63.
Those who “entered” the country were given certain rights, while those who had not
“entered” could be excluded without process. Id. Eventually, this concept was
imported into the criminal law by some circuits. See, e.g., United States v. Vasilatos,
209 F.2d 195 (3d Cir. 1954) (holding that a ship crewmember “entered” the country
under § 1326 when his request for admission was decided, not when he merely
crossed the border into the United States); United States v. Oscar, 496 F.2d 492 (9th
Cir. 1974) (reversing a conviction for aiding and abetting an illegal entry into the
United States because a Honduran had not “entered” the country, despite physically
crossing into American territory, because he was under official restraint).
In interpreting “entry,” “we must acknowledge Congress [used] a term with a
settled meaning.” Gaspar-Miguel, 947 F.3d at 634. But this court has never required
freedom from official restraint for an “entry” under § 1325(a), and we need not
decide whether it is required here. Even assuming for purposes of argument that
freedom from official restraint is required for an “entry,” neither Alvarado nor Perez
were under official restraint because, at most, they were only surveilled. Their only
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argument for restraint is continuous surveillance. 1 This argument was disposed of in
Gaspar-Miguel, where we held that continuous surveillance alone cannot constitute
restraint. 947 F.3d. at 634. We cannot reconsider that decision absent en banc
review by this court. United States v. Meyers, 200 F.3d 715, 721 (10th Cir. 2000).
Perez attempts to distinguish her situation from Gaspar-Miguel’s. She notes
her surveillance was different from Gaspar-Miguel’s because Gaspar-Miguel was
surveilled “from a distance via binoculars by an agent who could not identify whether
he was observing humans or animals.” Perez Br. at 22. On the other hand, Perez was
observed right as she crossed the border, and the border agent saw her from a shorter
distance unaided by binoculars. But these distinctions are inconsequential because
they are just different forms of surveillance. Regardless of the distance of
observation—or whether surveillance is aided by technologies such as binoculars—
surveillance on its own cannot transform into restraint.
Finally, the Defendants also request that we require inspection or intentional
evasion of inspection for § 1325(a)(1). Section 1325(a) provides three independent
ways for an alien to commit an illegal entry:
(1) enter[ing] or attempt[ing] to enter the United States at any
time or place other than as designated by immigration
1 Perez argues the magistrate court committed clear error in finding she was
not under continuous surveillance. She contends that because she was seen by the
border patrol agent as she crossed the border, she was surveilled for the entirety of
her presence in the country until she was detained. We need not decide whether an
error occurred, because even assuming she is correct, the error would be harmless
since continuous surveillance alone does not constitute restraint. See United States v.
Caldwell, 589 F.3d 1323, 1334 (10th Cir. 2009) (holding that jury verdicts will be
undisturbed if the court commits a harmless error).
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officers, or (2) elud[ing] examination or inspection
by immigration officers, or (3) attempt[ing] to enter or
obtain[ing] entry to the United States by a willfully false or
misleading representation or the willful concealment of a
material fact . . . .
8 U.S.C. § 1325(a) (emphases added).
The language of the statute provides three separate ways of committing the
offense. Congress used the disjunctive “or,” rather than the conjunctive “and”. If we
required inspection or intentional evasion of inspection for a violation of
§ 1325(a)(1), we would impermissibly collapse subsections (a)(1) and (a)(2).
Consequently, § 1325(a)(1) does not require inspection or intentional evasion
of inspection.
Alvarado and Perez, both foreign nationals, crossed the border at a time and
place other than as designated by immigration officers. And neither alleges any sort
of restraint other than continuous surveillance. Consequently, they both “entered”
the country within the meaning of § 1325(a)(1), so their convictions were proper.
III. Conclusion
Alvarado and Perez each “entered” the country at a time or place other than as
designated by immigration officers. Inspection or intentional evasion of inspection is
not required for a conviction. And even if we assumed that freedom from official
restraint is required, neither can establish official restraint because they only rely on
a theory of continuous surveillance, and continuous surveillance alone does not
equate to restraint.
For those reasons, the judgments of the district court are AFFIRMED.
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