As part of operation streamline in the Southern District, the government was charging almost everyone with misdemeanor violations of 18 U.S.C. § 1325(a)(2), eluding
examination or inspection by immigration officers.
In United States v. Corrales-Vazquez, --- F.3d ---, No. 18-50206 (9th Cir. 2019), the Court held someone who crosses into the country
at a non-designated time or place (i.e., not at a port of entry) is not guilty under
§ 1325(a)(2).
Rather, to convict under
§ 1325(a)(2), the government must prove the 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.
In short, the government has been charging people who try to cross through the hills or the desert, etc., under the wrong statute. It should have been charging violations of 1325(a)(1), which makes it a crime to enter the
United States outside a port of entry.
This is a split decision in which Judge Bybee concurs with this own majority opinion. He takes aim at the official restraint doctrine. I would not be surprised by an en banc call on that issue in the near future.
