finding, in a criminal context, that aliens were not free from official restraint of the customs officials because they were taken into custody in secondary inspection at the San Ysidro Port of Entry
How later courts described this case
- finding, in a criminal context, that aliens were not free from official restraint of the customs officials because they were taken into custody in secondary inspection at the San Ysidro Port of Entry
- holding that an entry has not been accomplished until physical presence is accompanied by freedom from official restraint
- defining elude in section 1325(a)(2) as meaning “to avoid or escape” (citation omitted)
- defendant not guilty of aiding and abetting unlawful entry because the aliens in question "did not 'enter' the United States as that term is used in § 1325" since they were being questioned and inspected by immigration officials at the port of entry throughout their attempted entry
Written by the judges who cited it.
The opinion
KOELSCH, Circuit Judge
(concurring specially):
I reach the same result as my brothers, but by a shorter route. Had the charge been conspiracy ( 18 U.S.C. § 371 ) to violate 8 U.S.C. § 1325 , this conviction would have been invulnerable. But Congress has not made penal the acts which Oscar aided and abetted. 8 U.S.C. § 1325 does not in terms include attempts to enter, nor is there a general federal statute which fills this gap. (See, for example, Cal.Penal Code § 663; Oregon Rev.St. § 161.405(1); Rev.Code Wash.Anno. § 9.01.070; Idaho Code Anno. § 18-306.) Thus here there was no “underlying offense.”
Accordingly, I perceive no need to pass upon the meaning of “entry” and “eluding”.