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Miguel Lombera-Valdovinos probably understands the adage about being careful about what you ask for. When he crossed the U.S. border from Mexico and immediately asked a border agent to jail him, federal officials obliged. It took an appeal to the Ninth Circuit U.S. Court of Appeals for him to have a chance to get out. Lombera-Valdovinos crossed from Mexico into California in plain sight of an immigration officer, whom he immediately approached. Lombera-Valdovinos had a history of run-ins with the law over criminal and immigration offenses, and � according to his lawyer � just wanted an agent to bring him in front of an immigration judge. Instead, a jury in a San Diego federal court convicted him of illegally re-entering the country. They were wrong, Ninth Circuit Judge Raymond Fisher wrote for the majority, because illegal entry requires someone to intend to be in the country free of custody � “official restraint,” as the law puts it. Crossing the border and surrendering yourself is a different matter. The defendant, Fisher wrote for himself and Senior Judge Betty Fletcher, therefore did not intend to be free of “official restraint” and, consequently, can’t be jailed for illegal re-entry. In a spirited dissent, Judge Pamela Ann Rymer said the defendant should be imprisoned � even if it’s not against his will � because jail does not constitute “official restraint.” “Jail no doubt is a place where one is restrained, officially. And to want to go to jail is to want to be restrained officially,” Rymer wrote. “But ‘official restraint’ is not just any old restraint, officially imposed: It is a term of art for border control.” She also wrote that the defendant is trying to get out of jail for free � after getting into jail for free � through wordplay. “He got caught in the act of trying to enter the U.S. without permission and, having achieved what he said he wanted � to go to jail � now seeks to gut the crime of attempted re-entry by a play on words,” she wrote. The case began about two years ago when Lombera-Valdovinos and a small group of other Mexican nationals were standing across the border from Officer Guillermo Avila’s marked patrol car. Lombera-Valdovinos proceeded to walk across the border and ask the officer to bring him to an immigration judge. He was eventually convicted of illegal re-entry and sentenced to 57 months in federal prison. “The evidence is uncontroverted that agent Avila saw the defendant before he crossed into United States territory, and that when the defendant crossed the border, he walked straight to Avila and told him that he wanted to go to jail,” Fisher wrote. The case then hinged on the definition of restraint and whether the defendant intended to be free of it. If not, his attorney said, Lombera-Valdovinos should merely have been turned back at the border. “It’s only a crime if you’re sneaking into the country,” said Timothy Scott, the San Diego solo who represented Lombera-Valdovinos in his trial and in front of the Ninth Circuit. “But if you’re approaching an officer and asking to see an immigration judge, there’s no criminal intent.” Roger Haines Jr., chief of the appellate division for the Southern District of California U.S. attorney’s office, disagreed. “We agree with the dissenting opinion,” he said. Haines said the defendant was tried � rather than merely sent back � because he had a history of convictions in the U.S. for crimes including drug offenses, burglary and making false statements to an officer. Haines said his office is conferring with Department of Justice officials in Washington on whether to seek en banc review or Supreme Court consideration. In the meantime, Scott said, his client will remain in jail � at or against his will � until such a decision is made. The case is U.S. v. Lombera-Valdovinos, 05 C.D.O.S. 10058.

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