dissenting:
The question here is not whether Lomb-era-Valdovinos committed the crime of illegal “reentry” or “being found in” the United States, which cannot be established unless the alien was free of “official re*931straint” between the time of his crossing the border and the time of his arrest. See, e.g., United States v. Pacheco-Medina, 212 F.3d 1162, 1166(9th Cir.2000) (holding that an alien who is never free from official restraint does not commit the crime of being found in the United States). Rather, the question is whether he had the specific intent, that is, the purpose or conscious desire, to “reenter” the United States. See United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir.2000) (en banc) (holding that attempted reentry in violation of 8 U.S.C. § 1326 is a specific intent crime). Lombera-Valdovinos posits that his only purpose in trying to enter the country was to go to jail. Thus, in his view, he could not have intended to “reenter” the country free of official restraint.
I dissent because Lombera-Valdovinos’s theory — that he could not have had the specific intent to “enter” the United States because his only purpose was to go to jail — is based on a flawed syllogism. It goes like this: An alien who cannot legally reenter the United States crosses the border and when spotted at the border by a border patrol agent, tells the agent that he wants to see an immigration judge to go to jail. An alien who is stopped at the border, or is continuously under surveillance from the time he crosses the border until he is apprehended, is under “official restraint” and thus, is deemed not to have “entered” the country. Therefore, an alien who wants to go to jail lacks the specific intent to “reenter” the country because his intent is to be restrained by government authorities.
The flaw is that “jail” is not the same thing as “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. But “official restraint” is not just any old restraint, officially imposed: it is a term of art for border control. The doctrine of “official restraint” determines whether an alien who illegally crosses the border and is physically within the United States is nevertheless deemed not to have made an “entry.” It flows from the immigration fiction that an alien who is caught at the border never “enters” the United States and so is excludable instead of deportable. See, e.g., Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (treating excluded alien held at Ellis Island as if stopped at the border). The “official restraint” doctrine is “premised on the theory that the alien is in the government’s constructive custody at the time of physical entry. By contrast, where an alien is able to exercise his free will subsequent to physical entry, he is not under official restraint.” United States v. Aguilar, 883 F.2d 662, 683 (9th Cir.1989); see Pacheco-Medina, 212 F.3d at 1164-65 (summarizing cases).
Lombera-Valdovinos was arrested within a hundred yards and a few minutes of crossing the border. He told the border patrol agent that he wanted to go to jail. This manifests an intent to be free of “official restraint” at the border, and to be restrained inside a jail beyond the border. For whatever reason, Lombera-Valdovi-nos’s avowed purpose for coming to the United States was to go to jail. This presupposes he would be part of the United States population, albeit that part of the population which is incarcerated. Prisons or jail facilities house persons in this country who are convicted of crime in this country; they are not an arm of the border-control process that “restrains” aliens before they actually go at large within the United States.
Perhaps because he recognizes this is so, Lombera-Valdovinos argues that, as the Bureau of Prisons and the Attorney General are government actors, and because *932the government is the entity that imposes “official restraint” at the border, by extension, his wish to be put in jail is a wish to be kept in “official restraint.” In this context, he argues that the instructions inaccurately narrowed “official restraint” to the Department of Homeland Security (DHS). I disagree. The instructions did state that “[i]f the alien is restrained by the agents or barriers of the Department of Homeland Security at the border, they are not yet free to go about or at large within the United States.” However, the focus on DHS is immaterial, because there was no dispute that Lombera-Valdovinos was apprehended by the Border Patrol— that is, by DHS. While the government agrees that other agencies of the government could restrain an alien at the border (for example, park police or the DEA), it is an irrelevant possibility in this case. What Lombera-Valdovinos wants license to argue is that if an alien is restrained by DHS at the border and intends to be restrained by any government agency thereafter, his purpose is always to be in “official restraint.” This is just another (circular) way of saying that his purpose of going to jail was the purpose of being subject to “official restraint” because the Bureau of Prisons and the Attorney General- — -who run the prison system — are government actors, and government actors are the ones who subject returning aliens to “official restraint” at the border. But neither the Bureau of Prisons nor the Attorney General commits an alien (whether or not under “official restraint”), or anyone else, to the custody of the Bureau of Prisons; only a United States District Judge can do that, after indictment, trial, and conviction.
Thus, “contrary to how the majority sees it, the government did not fall short of the mark by not attempting” to prove that the defendant intended to be free of official restraint, but instead arguing “that ‘official restraint’ could only be restraint by officials of the Department of Homeland Security.” Op. at 15522. As DHS was the only agency involved in Lombera-Valdovinos’s apprehension, it would have been confusing and misleading to assert or instruct otherwise. There is no basis in the evidence for supposing that official restraint could be imposed in this case by any agency except DHS. Nor is there any basis for concluding, as the majority then does, that “if the defendant had the specific intent to be taken to jail, he satisfied the statute’s requirement of having the intent to be free from official restraint.” Id. To want to go to jail inside the borders of this country is to intend to be free of official restraint — in this case, DHS — at the border.
Kaplan v. Tod, 267 U.S. 228, 45 S.Ct. 257, 69 L.Ed. 585 (1925), upon which the majority relies, suggests nothing different. In Kaplan, the alien was a child who was inadmissible and was ordered to be excluded. The order could not be carried out because of war. Meanwhile, the child was ordered to be kept at Ellis Island, then was turned over to the Hebrew Sheltering and Immigrant Aid Society, which allowed her to live with her father. She had been stopped at the border and was under the “official restraint” of the immigration authorities at Ellis Island, “[wjhen her prison bounds were enlarged by committing her to the custody of the Hebrew Society.” Id. at 230, 45 S.Ct. 257. As the Court explained, “[theoretically she is in custody at the limit of the jurisdiction awaiting the order of the authorities.” Id. at 231, 45 S.Ct. 257. The Court’s use of the words “prison bounds” was a figurative description of the child’s continuing constructive custody until such time as her deportation order could be executed. By contrast, Lombera-Valdovinos’s articulated purpose was to go to a real jail, not to stay in the constructive custody of immigration offi*933cials at the border or its functional equivalent.
As the district court pointed out, Lomb-era-Valdovinos had many avenues to achieve this purpose. He could have crossed the border without being seen, then turned himself in to a law enforcement official or committed a crime that would inevitably have led to incarceration. Instead, he got caught in the act of trying to enter the United States without permission and, having achieved what he said he wanted — to go to jail — now seeks to gut the crime of attempted reentry by a play on words.
As the district court also stated: “I think there comes a point in time that stretching the concept of entry and intent to enter results in absurd results. And if it’s going to be stretched to be an absurd result, it won’t be by me.” Me either.
None of the remaining issues raised on appeal requires reversal, so I would affirm across the board.