United States v. Hernandez-Adame: Fifth Circuit Confirms that “Entry” Under § 1326 Requires Freedom from Official Restraint, but Treats It as a Definitional Concept Within Trial Courts’ Instructional Discretion

Introduction

In United States v. Hernandez-Adame (5th Cir. Oct. 24, 2025), the Fifth Circuit confronted a recurring question in illegal reentry prosecutions: when, exactly, is an alien deemed to have “entered” the United States for purposes of 8 U.S.C. § 1326? The answer matters because a criminal “entry” has long been understood in federal immigration law to require not only physical presence on U.S. soil but also “freedom from official restraint.”

The defendant, Lazaro Hernandez-Adame, a Mexican citizen and former lawful permanent resident who had been removed several times, returned in August 2023 intending—by his own account—to get arrested so he could pursue appointed counsel and challenge his past immigration proceedings. He crossed at the El Paso port of entry, hopped a one-way southbound pedestrian turnstile, quickly surrendered to Customs and Border Protection officers, and admitted he had no documents authorizing entry.

Tried on a § 1326 indictment alleging he “attempted to enter, entered, and was found in the United States,” Hernandez sought a jury instruction defining “official restraint.” The district court declined and instead gave the Fifth Circuit Pattern Jury Instruction for § 1326 without the requested definitional add-on. The jury convicted him of illegal reentry. On appeal, Hernandez argued that denying the “official restraint” instruction was reversible error because it deprived him of his defense that he never achieved a criminal “entry.”

The Fifth Circuit affirmed the conviction but remanded to correct a clerical error in the judgment’s description of the offense. Most significantly, the court expressly confirmed—using unambiguous language—that in this circuit “actual reentry requires physical presence in the United States and freedom from official restraint.” Yet it characterized “freedom from official restraint” as part of the definition of “entry,” not a freestanding element, and held that trial courts retain discretion to decide whether a clarifying instruction is necessary in a given case.

Summary of the Opinion

• The court affirmed the denial of the requested “official restraint” instruction. Although the requested single-sentence instruction was a correct statement of law in the Fifth Circuit, its omission did not “seriously impair” the defense because counsel was allowed to present the theory in lay terms (i.e., that Hernandez never sought to be free of custody).
• The court confirmed that “freedom from official restraint” is part of the definition of “entry” under § 1326. The requested formulation—“Actual reentry requires physical presence in the United States and freedom from official restraint”—is “the law of this circuit.”
• The panel emphasized that “official restraint” is definitional, not an element of the offense. Trial judges have broad discretion whether to include a definitional instruction beyond the pattern language, depending on the case facts.
• The court expressly rejected the Government’s contention that the Fifth Circuit does not recognize the official restraint doctrine and declined to resolve unsettled subsidiary questions (e.g., whether constant surveillance alone constitutes official restraint).
• The court remanded for the limited purpose of correcting a clerical error in the written judgment so that the offense reads “Illegal Re-Entry,” consistent with the jury’s verdict, rather than “Attempted Illegal Re-Entry.”

Analysis

Precedents Cited and Their Influence

The opinion weaves together Fifth Circuit authority on § 1326’s elements, standards for reviewing the denial of defense-requested jury instructions, and prior statements about “official restraint.”

• Elements of § 1326:
  • United States v. Flores-Peraza, 58 F.3d 164, 166 (5th Cir. 1995) and United States v. Cardenas-Alvarez, 987 F.2d 1129, 1131–32 (5th Cir. 1993): establish the four elements—(1) alienage; (2) prior removal; (3) reentry into or unlawful presence (“entered or was found in”); and (4) lack of consent to reapply.
  • United States v. Jara-Favela, 686 F.3d 289 (5th Cir. 2012): recognizes the role of the DHS Secretary in the consent element.
• “Official restraint” and “entry”:
  • United States v. Morales-Palacios, 369 F.3d 442, 446 (5th Cir. 2004): states that actual entry requires “freedom from official restraint.”
  • Martinez-Aguero v. Gonzalez, 459 F.3d 618, 623 n.4 (5th Cir. 2006), citing United States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000): reiterates the definition-of-entry concept.
  • Cardenas-Alvarez, 987 F.2d at 1133: warns that grafting “freedom from official restraint” onto attempted entry would collapse the distinction between attempt and completed entry—signaling that official restraint matters to “entry,” not “attempt.”
  • Unpublished reminders that the Fifth Circuit had not “detailed” the doctrine in § 1326 cases: United States v. Palomares-Villamar, 417 F. App’x 437, 439 (5th Cir. 2011); United States v. Garcia-Montejo, 736 F. App’x 94, 94 (5th Cir. 2018).
  • Ninth Circuit benchmark: United States v. Bello-Bahena, 411 F.3d 1083 (9th Cir. 2005) (reversal for failing to instruct on official restraint; “constant governmental observation or surveillance from the moment of entry” qualifies). The Fifth Circuit cites this for comparison but does not adopt the Ninth Circuit’s surveillance rule.
• Jury-instruction standards and pattern-instruction “safe harbor”:
  • United States v. Toure, 965 F.3d 393, 402–03 (5th Cir. 2020) (quoting United States v. Daniel, 933 F.3d 370, 379 (5th Cir. 2019)): reversible error in refusing a defense instruction exists only if the instruction is substantially correct, not substantially covered by the charge, and concerns an important point whose omission seriously impairs the defense.
  • United States v. Cessa, 856 F.3d 370, 376 (5th Cir. 2017); United States v. Richardson, 676 F.3d 491, 507–08 (5th Cir. 2012); United States v. Turner, 960 F.2d 461, 464 (5th Cir. 1992): pattern instructions are a safe harbor only if they “substantially cover” the legal point; definitional add-ons are unnecessary if terms are within jurors’ common understanding or the charge otherwise fairly covers the issues.
  • United States v. Peterson, 977 F.3d 381, 390 n.2 (5th Cir. 2020): explicitly frames pattern instructions as a safe harbor to the extent they “subsume” the otherwise correct defense instruction.
  • Other review-principles cases cited: United States v. Mollier, 853 F.2d 1169 (5th Cir. 1988); United States v. Duvall, 846 F.2d 966 (5th Cir. 1988); United States v. Kimmel, 777 F.2d 290 (5th Cir. 1985); United States v. Grissom, 645 F.2d 461 (5th Cir. 1981); United States v. Montgomery, 747 F.3d 303 (5th Cir. 2014); United States v. Hamilton, 46 F.4th 389 (5th Cir. 2022); United States v. Freeman, 434 F.3d 369 (5th Cir. 2005); Sultan v. United States, 249 F.2d 385 (5th Cir. 1957).
• Clerical correction authority:
  • United States v. Cooper, 979 F.3d 1084, 1089 (5th Cir. 2020), citing United States v. Ramirez-Gonzalez, 840 F.3d 240, 247 (5th Cir. 2016): endorses limited remand to correct a clerical error in the judgment under Rule 36.

These authorities drive two key conclusions: (1) the “freedom from official restraint” concept is embedded in the definition of “entry” (and is therefore relevant when a case turns on whether “entry” occurred), and (2) refusal to give an otherwise correct defense instruction is not reversible where the pattern charge adequately covers the issues and the defense can still be effectively presented.

Legal Reasoning

Applying the Fifth Circuit’s three-part standard for refusing a defense-requested jury instruction, the panel proceeded prong-by-prong:

1. Substantial correctness of the requested instruction: The court held the single-sentence instruction—“Actual reentry requires physical presence in the United States and freedom from official restraint”—is accurate and “the law of this circuit.” In doing so, the panel squarely rejected the Government’s claim that the Fifth Circuit has not adopted the doctrine.
2. Whether the issue was substantially covered by the charge: Even without the specific “official restraint” sentence, the pattern § 1326 instruction correctly stated the elements and “adequately and fairly covered the issues presented in the case.” Because “official restraint” operates as part of the definition of “entry” rather than as a separate element, the court left it to trial judges’ discretion whether to include a definitional gloss in cases where it would materially aid the jury.
3. Whether omission seriously impaired the defense: The court looked beyond the charge to how the defense was actually presented. Hernandez’s counsel argued the essence of the theory—that he never sought to be free from custody and, indeed, turned himself in—without uttering the words “official restraint.” Given this record, the panel concluded the absence of the instruction did not “seriously impair” the defense. Any error, if present, was harmless.

Two clarifications stand out. First, the court emphasized that “freedom from official restraint” is definitional of “entry,” not a separate element the Government must plead and prove beyond a reasonable doubt. Second, the panel expressly left open unresolved issues that other circuits (most notably the Ninth) have addressed—such as whether constant surveillance alone constitutes “official restraint”—and declined to pronounce a bright-line rule on how long or where restraint must exist to negate an “entry.”

Finally, the court made a housekeeping correction: it remanded under Rule 36 to conform the written judgment to the jury’s actual verdict—“Illegal Re-Entry,” not “Attempted Illegal Re-Entry.”

Impact

The opinion carries immediate and practical consequences for § 1326 litigation in the Fifth Circuit:

• Doctrinal confirmation: Defense and prosecution alike must now proceed on the settled premise that, in this circuit, a completed “entry” under § 1326 requires both physical presence and freedom from official restraint. The Government’s contrary argument at trial—that the Fifth Circuit has not recognized the doctrine—is no longer tenable.
• Instructional discretion with a clear north star: Although the doctrine is confirmed, trial courts retain broad discretion whether to give a bespoke definitional instruction. The touchstone is functional: does the pattern charge fairly cover the issues, and can the defense present its theory effectively? Where the case turns on a close “entry” question and a record raises restraint-like facts (e.g., immediate surrender, continuous escort, gatekeeping surveillance), declining a clarifying instruction could be riskier.
• Separation of “entry,” “attempt,” and “found in”: Because “official restraint” goes to the definition of completed “entry,” it does not carry over to “attempted entry” (per Cardenas-Alvarez) and is not a defense to the alternative “found in” prong, which focuses on unlawful presence after removal. Prosecutors facing a colorable restraint defense will likely emphasize (and, as here, plead) the “found in” theory.
• Pattern instruction practice: The Fifth Circuit effectively endorses the pattern instruction as a safe harbor so long as it “substantially covers” the issues, but it also nudges trial courts to tailor instructions “as needed to fit the facts of the case.” Expect more targeted defense requests for definitional language and more case-specific rulings.
• Open questions for future development: The panel expressly reserved whether constant camera surveillance, immediate observation, or other forms of ubiquitous monitoring constitute “official restraint,” and for how long or in what spatial context such restraint must persist to negate “entry.” Those issues are ripe for future cases presenting fuller records.

Complex Concepts Simplified

• “Entry” under § 1326:
  • Not just stepping on U.S. soil. A completed criminal “entry” requires (a) physical presence in the United States and (b) freedom from “official restraint.”
  • “Official restraint” generally refers to government-imposed custody, control, or continuous oversight that prevents the person’s free movement into the country after crossing the boundary.
• “Official restraint” examples (conceptual, not exhaustive):
  • Being under immediate government custody at or after crossing.
  • Continuous official escort from the border line into the port of entry.
  • Open question in the Fifth Circuit: Is constant surveillance alone sufficient (the Ninth Circuit has said yes)? Hernandez-Adame deliberately leaves this undecided.
• Difference between “entered,” “attempted entry,” and “found in”:
  • Entered: Completed offense requiring physical presence plus freedom from official restraint.
  • Attempted entry: Inchoate offense that does not include the “freedom from official restraint” concept; adding it would collapse attempt into completion.
  • Found in: Offense completed when a previously removed alien is later discovered in the United States without consent. It does not require proof of how or when the entry occurred, so “official restraint” is typically not a defense to “found in.”
• Pattern jury instructions:
  • Common, curated templates that recite elements and general definitions. They are not binding law but are widely used. Courts may tailor them to fit case-specific issues.
  • “Safe harbor” does not mean “one size fits all.” If a defense raises a legally supported theory not fairly covered by the pattern charge, targeted additions may be required.
• Appellate review of refused defense instructions:
  • Reversible error requires three showings: (1) the requested instruction is substantially correct; (2) the topic is not substantially covered by the given charge; and (3) omission seriously impaired the ability to present the defense.
  • Courts also consider whether counsel could and did argue the defense theory effectively, even without the exact words in the charge.
• Clerical-error remand:
  • Appellate courts may remand under Rule 36 to correct a mismatch between a jury’s verdict and the written judgment’s offense description.

Conclusion

Hernandez-Adame provides important doctrinal clarity and practical guidance. The Fifth Circuit unequivocally confirms that, within this circuit, “actual reentry requires physical presence in the United States and freedom from official restraint.” At the same time, it harmonizes that doctrine with trial management realities by treating “official restraint” as a definitional gloss on “entry,” not as a standalone element, and by reaffirming the district courts’ broad discretion to tailor (or not) the pattern jury instruction depending on the evidentiary posture.

On the facts presented—where the defense theory was aired fully in lay terms and the pattern instruction otherwise correctly captured the statutory elements—the omission of a specific “official restraint” instruction was not reversible error. But the opinion’s framing makes clear that in a closer case, especially one with robust evidence of government control or surveillance at and immediately after crossing, a refusal to give a clarifying instruction could well “seriously impair” the defense and warrant reversal.

Finally, the court’s limited remand to correct the offense label underscores a routine but vital point: ensuring that the judgment precisely matches the jury’s verdict. In sum, Hernandez-Adame both consolidates the Fifth Circuit’s understanding of “entry” and signals how trial courts and litigants should handle the “official restraint” doctrine going forward.