FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-10079
v. DC No.
YONG JUN LI, 1:10-cr-08 ARM
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-10089
v. DC No.
WEI KUN ZHONG, 1:10-cr-021 ARM
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 10-10095
Plaintiff-Appellee,
v. DC No.
1:10-cr-05 ARM
SHI GUANG LI,
OPINION
Defendant-Appellant.
Appeals from the District Court
for the Northern Mariana Islands
Alex R. Munson, Chief District Judge, Presiding
Argued and Submitted
February 17, 2011—Honolulu, Hawaii
Filed May 2, 2011
5669
5670 UNITED STATES v. LI
Before: A. Wallace Tashima, William A. Fletcher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Tashima
UNITED STATES v. LI 5671
COUNSEL
George Anthony Long, Law Office of G. Anthony Long, San
Jose, Saipan, MP, for defendant-appellant Yong Jun Li.
Sean E. Frink, Carlsmith Ball LLP Saipan, MP, for defendant-
appellant Wei Kun Zhong.
5672 UNITED STATES v. LI
Bruce Berline, Law Office of Bruce Berline, Garapan, Saipan,
MP, for defendant-appellant Shi Guang Li.
Kirk W. Schuler, Assistant United States Attorney, Saipan,
MP, for the plaintiff-appellee.
OPINION
TASHIMA, Circuit Judge:
In these consolidated appeals, Defendants-Appellants Shi
Guang Li, Wei Kun Zhong, and Yong Jun Li (collectively,
“Defendants”) appeal their convictions for violation of 8
U.S.C. § 1325(a)(1), for attempting to enter the United States
at a time or place not designated by immigration officers. The
three were charged with attempting to travel from the Com-
monwealth of the Northern Mariana Islands (“CNMI”) to the
Territory of Guam by boat.
We have jurisdiction under 28 U.S.C. § 1291. See, e.g.,
United States v. Atalig, 502 F.3d 1063, 1065 (9th Cir. 2007).
We hold that an alien does not “enter[ ] or attempt[ ] to enter
the United States” for purposes of § 1325(a)(1) when travel-
ing by boat from the CNMI to Guam. Accordingly, we
reverse Defendants’ convictions.1
I.
Title VII of the Consolidated Natural Resources Act of
2008, Pub. L. No. 110-229, 122 Stat. 754 (codified in relevant
part at 48 U.S.C. §§ 1806-1808) (“CNRA”), applies the immi-
gration laws of the United States to the CNMI. See 48 U.S.C.
§ 1806(a)(1). Prior to passage of the CNRA, the CNMI was
1
Because we so hold, we do not reach either the evidentiary issues
raised by Defendant Shi Guang Li or the constitutional arguments raised
by all three Defendants.
UNITED STATES v. LI 5673
considered to be outside the United States for immigration
purposes. The CNRA provided for a transition period ending
December 31, 2014, during which certain exceptions to
United States immigration law apply. See 48 U.S.C.
§ 1806(a)(2). The transition period went into effect on
November 28, 2009. See Northern Mariana Islands v. United
States, 670 F.Supp.2d 65, 73 (D.D.C. 2009).
Defendants were charged by information with violating 8
U.S.C. § 1325(a)(1) for being aliens who knowingly and wil-
fully attempted to enter the United States at a time and place
other than as designated by immigration officers by attempt-
ing to travel by boat from Saipan in the CNMI to Guam on
or about January 5, 2010, a date within the CNRA’s transition
period. Defendants filed motions to dismiss the informations,
arguing that because the CNRA made the CNMI part of the
United States for purposes of immigration law, an alien trav-
eling from Saipan to Guam at a time or place not designated
by immigration officers does not commit a criminal offense.
The motions were denied. The district court concluded that
because Defendants were arrested during the CNRA’s transi-
tion period, the CNMI was not fully a part of the United
States for immigration purposes. The court declined to rule on
the United States’ alternative argument that Defendants would
be properly charged even if the CNMI were deemed a part of
the United States for immigration purposes. Upon the denial
of the motions, Defendants Yong Jun Li and Wei Kun Zhong
entered conditional pleas of guilty, reserving their right to
appeal the denial of the motions to dismiss. Defendant Shi
Guang Li was convicted after a bench trial. Each Defendant
was sentenced to one year of probation.
II.
“The construction or interpretation of a statute is a question
of law that we review de novo.” United States v. Cabaccang,
332 F.3d 622, 624-25 (9th Cir. 2003) (en banc).
5674 UNITED STATES v. LI
A.
In denying Defendants’ motions to dismiss, the district
court noted that during the transition period established by the
CNRA, certain exceptions to United States immigration law
apply in the CNMI, see 48 U.S.C. §§ 1806(a)(7), (b)-(e), and
concluded that, as a result, “the transition period exceptions
require the conclusion that the CNMI is not yet fully a part of
the United States for immigration purposes.”
[1] The district court undertook the wrong inquiry.
Although the CNRA does provide for some exceptions to
United States immigration law that apply to the CNMI during
the transition period, both the Immigration and Nationality
Act (“INA”) and the CNRA demonstrate that the CNMI is a
part of the United States for purposes of § 1325(a)(1). The
INA defines “United States,” “when used in a geographical
sense,” as “the continental United States, Alaska, Hawaii,
Puerto Rico, Guam, the Virgin Islands of the United States,
and the Commonwealth of the Northern Mariana Islands,”
unless “otherwise specifically . . . provided” in the statute. 8
U.S.C. § 1101(a)(38). Similarly, it defines the term “State” to
include both Guam and the CNMI. 8 U.S.C. § 1101(a)(36).
Section 1325(a)(1) does not by its terms exclude the CNMI,
and the parties do not point to any other provision of the INA
that excludes the CNMI for purposes of § 1325(a)(1).
[2] Concomitantly, the CNRA, on which the district court
relied in these cases, does not indicate that the CNMI is out-
side the United States for immigration purposes. The CNRA’s
plain text commands that the exceptions to the principle that
the immigration laws of the United States apply to the CNMI
be restricted to those explicitly set forth in the statute, none
of which refers to § 1325(a)(1). See 48 U.S.C. § 1806(a)(1)
(during the transition period, “the provisions of the ‘immigra-
tion laws’ (as defined in section 101(a)(17) of the Immigra-
tion and Nationality Act (8 U.S.C. 1101(a)(17))) shall apply
to the Commonwealth of the Northern Mariana Islands . . . ,
UNITED STATES v. LI 5675
except as otherwise provided in this section” (emphasis
added)).
[3] Accordingly, the CNMI is a part of the United States
for purposes of § 1325(a)(1).
B.
Although the CNMI and Guam are both parts of the United
States for purposes of United States immigration law, the gov-
ernment argues that it is still possible to violate § 1325(a)(1)
by traveling by boat from the CNMI to Guam, because the
trip necessarily involves travel through international waters.
This argument has two premises: first, that the trip from the
CNMI to Guam does in fact require travel through interna-
tional waters, and, second, that travel from the CNMI to
Guam through international waters constitutes “enter[ing] the
United States” for purposes of § 1325(a)(1).
[4] We agree with the government’s first premise. The
minimum distance between Guam and Rota, the CNMI island
closest to Guam, is 31 nautical miles. See United States v.
Perez, 776 F.2d 797, 802 (9th Cir. 1985) (taking judicial
notice of this fact), overruled in part by United States v.
Cabaccang, 332 F.3d 622, 634-35 & n.21 (9th Cir. 2003) (en
banc). United States territorial waters extend only 12 nautical
miles from the coastline, meaning that at most 24 nautical
miles of the distance between Rota and Guam is within
United States territorial waters. See, e.g., United States v.
Bennett, 363 F.3d 947, 950 n.2 (9th Cir. 2004) (“United States
territorial waters include a 12-nautical-mile strip of ocean
extending from the coastline.”); Perez, 776 F.2d at 802
(“Because the combination of the two territorial seas could, at
most, cover [less than 31 nautical miles], it is also obvious
that any trip between Rota and Guam must involve travel
through international waters.”). Accordingly, some portion of
5676 UNITED STATES v. LI
a voyage by boat between the CNMI and Guam would of
necessity be through international waters.2
We disagree, however, with the government’s second
premise. A long line of authority construing the term “entry”
in the immigration context compels the conclusion that when
one travels from one part of the United States to another
through international waters, one does not “enter the United
States.”
[5] In United States ex rel. Claussen v. Day, 279 U.S. 398
(1929), the Supreme Court, construing the Immigration Act of
1917, noted:
The word “entry” by its own force implies a coming
from outside. The context shows that in order that
there be an entry within the meaning of the act there
must be an arrival from some foreign port or place.
There is no such entry where one goes to sea on
board an American vessel from a port of the United
States and returns to the same or another port of this
country without having been in any foreign port or
place.
Id. at 401. In subsequent decisions, the Court repeatedly held
that this discussion meant that no entry into the United States
2
Defendant Wei Kun Zhong argues that Presidential Proclamation 7219,
64 Fed. Reg. 48701 (Aug. 2, 1999), extended United States territory to 24
miles from shore. We disagree. The proclamation extends only the contig-
uous zone of the United States, which does not represent United States ter-
ritory, but only a region “in which the United States may exercise the
control necessary to prevent infringement of its customs, fiscal, immigra-
tion, or sanitary laws and regulations within its territory or territorial sea,
and to punish infringement of the above laws and regulations committed
within its territory or territorial sea.” Id. (emphases added); see also
United Nations Convention on the Law of the Sea art. 33, Dec. 10, 1982,
1833 U.N.T.S. 397, available at http://www.un.org/Depts/los/convention_
agreements/texts/unclos/unclos_e.pdf.
UNITED STATES v. LI 5677
occurred when an alien traveled from one part of the United
States to another on a route that took him or her through inter-
national waters. In Delgadillo v. Carmichael, 332 U.S. 388
(1947), where a Mexican citizen and American resident was
serving as a crew member on an American merchant ship on
a voyage from Los Angeles to New York when the ship was
torpedoed, the court noted that “[i]f [Delgadillo’s] intercoastal
voyage had continued without interruption, it is clear that he
would not have made an ‘entry’ when he landed at its termi-
nation.” Id. at 391 n.1. Similarly, in Barber v. Gonzales, 347
U.S. 637 (1954), the Court determined that an individual who
traveled from the Philippines to the continental United States
before the Philippine Independence Act had “made no
‘entry.’ ” Id. at 642. The Court noted that “a different conclu-
sion would not be permissible in view of the well-settled
meaning of ‘entry’ . . . .” Id. Accordingly, under the Supreme
Court’s long-established understanding of “entry” for pur-
poses of immigration law, an alien does not “enter the United
States” when she or he travels through international waters
from one part of the United States to another.
Significantly, Claussen construed entry within months of
the first enactment of criminal penalties for illegal entry. See
Act of March 4, 1929, Pub. L. No. 70-1018, § 2, 45 Stat. 1551
(“Any alien who hereafter enters the United States at any time
or place other than as designated by immigration officials . . .
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.”); Mae M. Ngai, Impossible Subjects: Illegal
Aliens and the Making of Modern America 60 (2004). This
understanding of entry was codified in the Immigration and
Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 (the
“1952 Act”),3 which also contained a version of
3
The full definition, as it appeared before its repeal in 1996, is as fol-
lows:
The term “entry” means any coming of an alien into the United
States, from a foreign port or place or from an outlying posses-
5678 UNITED STATES v. LI
§ 1325(a)(1)’s precursor.4 Under the 1952 Act, this court con-
tinued to apply the meaning of “entry” established by
Claussen and its progeny. See, e.g., United States ex rel.
Alcantra v. Boyd, 222 F.2d 445 (9th Cir. 1955) (holding that
United States resident from the Philippines made no “entry”
under the 1952 Act taking a voyage by boat from Alaskan
waters to Seattle). But see United States v. Tsai, 282 F.3d 690,
696 n.5 (9th Cir. 2002) (distinguishing Alcantra because that
case depended on the definition of “entry” under the 1952
Act, whereas Tsai’s case was governed by the post-IIRIRA
definition of “admission,” and noting that under the definition
of “United States” in the INA then in effect “Tsai’s trip from
Guam to Saipan took him outside the United States for pur-
poses of the immigration laws” because the definition “in-
clude[d] Guam but [did] not mention[ ] the CNMI”).
Although Congress repealed the statutory definition of
“entry” when it enacted the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”), see
sion, whether voluntarily or otherwise, except that an alien hav-
ing a lawful permanent residence in the United States shall not
be regarded as making an entry into the United States for the pur-
poses of the immigration laws if the alien proves to the satisfac-
tion of the Attorney General that his departure to a foreign port
or place or to an outlying possession was not intended or reason-
ably to be expected by him or his presence in a foreign port or
place or in an outlying possession was not voluntary: Provided,
That no person whose departure from the United States was occa-
sioned by deportation proceedings, extradition, or other legal pro-
cess shall be held to be entitled to such exception.
8 U.S.C. § 1101(a)(13) (West 1996). “The term ‘outlying possessions of
the United States’ means American Samoa and Swains Island,” and thus
includes neither the CNMI nor Guam. 8 U.S.C. § 1101(a)(29) (2010);
accord 8 U.S.C. § 1101(a)(29) (West 1996).
4
“Any alien who (1) enters the United States at any time or place other
than as designated by immigration officers . . . shall, for the first commis-
sion of any such offense[ ] . . . be punished by imprisonment for not more
than six months, or by a fine of not more than $500 . . . .” 1952 Act, § 275,
66 Stat. at 229.
UNITED STATES v. LI 5679
Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007), IIRIRA
did not provide a new definition of “entry”; instead, “ ‘it . . .
eliminated the key terms “entry” and “intended” from
§ 101(a)(13) and replaced the former statute with a compre-
hensive scheme for determining the classification of returning
aliens.’ ” Id. at 879. As a result of this change, legal perma-
nent residents who have committed crimes making them “in-
admissible” now risk deportation not by making an “entry,”
but instead by seeking “admission.” See id. at 875, 878; see
also 8 U.S.C. § 1101(a)(13)(C).
[6] The criminal provision of § 1325, however, continues
to turn on whether an alien “enters” the United States. As
such, and because Congress did not provide a new definition
of “entry” in the statute, the prior judicial construction of
“entry” continues to govern the meaning of the statute. Cf.
Hing Sum v. Holder, 602 F.3d 1092, 1100 (9th Cir. 2010) (cit-
ing cases for the proposition that “where Congress uses terms
with settled meanings, ‘a court must infer, unless the statute
otherwise dictates, that Congress means to incorporate the
established meaning of these terms,’ ” and relying on how
“the BIA had long defined ‘entry’ ” at the time of IIRIRA’s
passage); United States v. Gonzalez-Torres, 309 F.3d 594,
598 (9th Cir. 2002) (interpreting, in a post-IIRIRA case, the
word “enter” in § 1325 by relying on judicial understanding
of the term stretching back to 1908). Accordingly, it remains
the case that an alien traveling from one part of the United
States to another does not “enter the United States” at the end
of the voyage simply by virtue of having traveled through
international waters in the course of that trip.
C.
[7] Finally, the government argues that 8 U.S.C.
§ 1182(d)(7), which provides that certain criteria making
aliens inadmissible to the United States also apply to aliens
who “leave Guam, the [CNMI], Puerto Rico, or the Virgin
Islands of the United States, and who seek[ ] to enter the con-
5680 UNITED STATES v. LI
tinental United States or any other place under the jurisdiction
of the United States,” indicates that the criminal penalties of
§ 1325(a) are also meant to apply in the same situation. 8
U.S.C. § 1182(d)(7). We disagree.
First, “enter” as used in this provision is qualified. Unlike
§ 1325(a)(1), which applies to aliens who “enter[ ] the United
States,” 8 U.S.C. § 1325(a)(1), § 1182(d)(7) applies only to
aliens who “enter the continental United States or any other
place under the jurisdiction of the United States.” 8 U.S.C.
§ 1182(d)(7) (emphasis added). As such, it acknowledges that
aliens in the CNMI and the other jurisdictions listed have
already entered the United States.
[8] Second, unlike § 1325, which imposes criminal penal-
ties, § 1182(d)(7) provides only that certain aliens are inad-
missible, and thus subject to the removal process. By its own
terms, “[a]ny alien described in this paragraph, who is denied
admission to the United States, shall be immediately removed
. . . .” 8 U.S.C. § 1182(d)(7). Accordingly, this provision fails
to demonstrate that Congress wished to provide criminal
sanctions for travel between the CNMI and other parts of the
United States. Given that Congress has explicitly established
a legal regime for dealing with aliens who make unauthorized
travel between the CNMI and Guam, we will not assume that
it intended a more general provision to apply in the face of a
long history that suggests otherwise, especially where the
result is to make individuals vulnerable to criminal sanctions
without clear notice. Cf. United States v. Millis, 621 F.3d 914,
916-17 (9th Cir. 2010) (noting that “the rule of lenity requires
courts to limit the reach of criminal statutes to the clear
import of their text and construe any ambiguity against the
government”) (internal quotation marks omitted).
III.
[9] Because both the CNMI and Guam are parts of the
United States, and an alien does not “enter[ ] the United
UNITED STATES v. LI 5681
States” for purposes of the criminal statute 8 U.S.C.
§ 1325(a)(1) when traveling from one part of the United
States to another, even if when doing so she or he passes
through international waters, Defendants did not violate the
statute by attempting to travel by boat from the CNMI to
Guam.
Each of the judgments of conviction is REVERSED.
These cases are remanded to the district court with instruc-
tions that each of the informations be DISMISSED.