Full opinion text
CYNTHIA HOLCOMB HALL, Circuit Judge: Appellants were convicted of masterminding and running a modern-day underground railroad that smuggled Central American natives across the Mexican border with Arizona. Beginning in Mexico, various appellants directed illegal aliens to several Arizona churches that operated as self-described sanctuaries. From Arizona, appellants sent many of these illegal aliens to Chicago, Illinois, where they were subsequently dispersed throughout the United States to so-called safehouses. Appellants were sentenced to varying terms of probation; none received jail terms. Appellants contend that the aliens they smuggled, transported, and harbored are bona fide political refugees entitled to political asylum in the United States pursuant to the Refugee Act of 1980, Pub.L. No. 96-212, 94 Stat. 102 (codified in scattered sections of 8 U.S.C. (1982)). Yet appellants counseled the aliens to avoid American immigration authorities at all costs and to lie to them if apprehended. Appellants’ disdain for federal immigration law is perhaps best evidenced by an episode at the Sacred Heart Church in Nogales, Arizona. Appellant Anthony Clark had arranged for a government informant to transport to Phoenix several illegal aliens. Two of these aliens had been intercepted and released by American immigration officials. The authorities had issued documents to these aliens requiring them to appear before an immigration judge. Clark took these documents and tore them up, instructing the aliens that they had erred by truthfully identifying themselves as Salvadoran citizens. Appellants offer two explanations to justify their avoidance of Immigration and Naturalization Service (INS) officials. First, appellants contend that the INS improperly failed to approve the meritorious political asylum applications of aliens who applied at official ports of entry. The INS’s misfeasance, according to appellants, necessitated a course of deliberate avoidance of INS officials during and after an alien’s entry into the United States. But appellants also seek to justify their policy of discouraging an alien from presenting himself to the INS on the basis that appellants were mistaken as to the necessity of such presentment. Appellants state that they believed the 1980 Refugee Act did not require either an alien’s formal presentment to the INS or an application for political asylum in order for an alien to be legally entitled to reside here. The tension between appellants’ mistake of law explanation and their deliberate avoidance explanation is patent, and it permeates this entire case. On the one hand, appellants acknowledge a detailed understanding of and familiarity with the INS’ procedures for the filing of applications for political asylum. But appellants also profess naivete and ignorance of the critical role of such presentment and application as a prerequisite to an alien’s legal status. I Appellants sought and received extensive media coverage of their efforts on behalf of Central American aliens. Eventually, the INS accepted appellants’ challenge to investigate their alien smuggling and harboring activities. The INS infiltrated the sanctuary movement with several undercover informers and agents who tape recorded some meetings. The record developed at trial is mountainous, and the following factual account seeks only to capture some of the more significant events relevant to this appeal. A On March 19, 1982, appellant John M. Fife, in an interview published by a Tucson, Arizona newspaper, announced that he and his church, the Southside Presbyterian Church, “can no longer cooperate with or defy the law covertly as we have done.” He challenged the United States government to arrest him as a felon in violation of the immigration laws. Indeed, Fife wrote to the Attorney General of the United States on March 23, 1982, to protest “[t]he current administration of United States law [which] prohibits us from sheltering these refugees from Central America.” The following day, several hundred people rallied at the Federal Building in Tucson to protest the government’s failure to grant political asylum to Central American aliens. The protesters then marched to Fife’s church and, once there, Fife hosted a news conference at which he introduced a person he described as an undocumented Salvadoran alien who was staying at the church. Defendant James A. Corbett, acquitted below, was featured in a six-page article in the August 9, 1982, issue of People magazine. He described the smuggling of a Salvadoran family across the Mexican border and their reception at Fife’s church. In the September 13, 1982, issue of the magazine U.S. News & World Report, Fife was featured in an article describing his smuggling activities. The magazine quoted Fife as saying he was “willing to suffer the consequences” of his smuggling. Appellants’ smuggling operation received continuing publicity. On December 12, 1982, the CBS television program 60 Minutes broadcast a segment featuring Cor-bett. Before a national television audience, Corbett boasted of having smuggled 250 to 300 illegal aliens from Central America. Later that same month, Fife was featured in a Tucson newspaper article, and again in a February 7, 1983, article. Corbett was interviewed for an article appearing on August 1, 1983 in a Phoenix newspaper. Noting that stepped-up INS border enforcement efforts had proven more effective, Corbett stated that the sanctuary movement had advised aliens to cross the border at different points. B The government initiated an undercover investigation of appellants’ smuggling activities on March 27, 1984, when undercover agent Jesus Cruz (“Cruz”) contacted appellant Ramon Dagoberto Quinones at Qui-nones’ church office in Nogales, Sonora, Mexico. Cruz told Quinones that he supported the sanctuary movement and that he wished to volunteer. Cruz next met Quinones on April 16,1984, when he accompanied Quinones to the Mexican federal prison in Nogales, where Mexico detains Central Americans who have violated Mexican immigration laws. Quinones introduced Cruz to Maria del Socorro Pardo Viuda de Aguilar (“Aguilar”), and the three entered the prison to meet with Central Americans who Mexico was set to deport. Quinones counseled the Nogales prisoners that if they planned to reattempt their journey to the United States, they should contact certain persons in Mexico who would instruct them on how to avoid Mexican immigration authorities. Quinones also told the prisoners that if they should reach the United States border they should avoid INS officials. He said that if they were apprehended by INS officials, they should lie and claim to be Mexican citizens, as this would avoid their formal deportation to Central America. From this introduction to the sanctuary movement, Cruz quickly became appellants’ trusted and valued colleague. Cruz met Philip M. Conger on May 3, 1984, in Nogales, Mexico. Cruz accompanied Conger as he drove the Rodriguez family to a hilltop overlooking the United States border. Once there, Conger identified a hole in the border fence and the steeples of the Sacred Heart Church, where he advised the family to go. Conger assured the family that the church would provide them sanctuary. Conger also asked Cruz to give the family a brief history of Mexico so that they could pretend to be Mexicans if apprehended. The family made their way to the church later that week. Cruz also became involved in Aguilar’s and Quinones’s plan to smuggle Julio and Ana Benavidez, both Salvadoran citizens, into the United States. On Aguilar’s orders, Cruz obtained an envelope from Qui-nones which contained an immigration document. Cruz gave Aguilar this document, and she instructed Ana to memorize the name, age, and address of the person identified on the document. Aguilar dressed Ana to look like the person portrayed on the document. Cruz, Aguilar, and Ana then went to the Nogales Port of Entry where Aguilar walked 13-year-old Ana through the checkpoint. Quinones took Julio and Miguel Mejia, another Salvadoran, to the border fence to identify the hole they were to enter through. He told them that if they were caught by the INS they should lie and say they were from Mexico. Julio and Miguel crossed the border in this manner the morning before Aguilar brought Ana through the Nogales checkpoint. Cruz later met with both Julio and Ana at the Sacred Heart Church, and as instructed by Aguilar, Cruz took them to their mother’s residence in Phoenix. Conger and Aguilar also arranged for Cruz and John Nixon, another undercover agent, to drive Miguel and two other illegal aliens, Edwin Chavez and Mervin Chavez, to Los Angeles, California. Nixon discussed these plans with Fife, who suggested a route which he said was not patrolled by the United States Border Patrol. Nixon expressed nervousness to Fife, who assured him: “It’s a piece of cake.” Quinones took several aliens, including Jose Ruben Torres, to the familiar hole in the border fence in Nogales, Sonora, Mexico. Torres had told Quinones that he was a Salvadoran who wanted to enter the United States to find work. Quinones told Torres and the others that Clark would assist them once they reached the church. On June 18, 1984, Torres crossed the border alone and soon made his way to Clark’s church. Once there, he met Clark and told him that he was from El Salvador and wanted to find a job in the United States. Clark was also informed that Aguilar had sent Torres. Clark told Torres he would be sheltered in a guest house adjoining the church, and he gave Torres the room key. Clark also assured Torres that he would be given meals. Subsequently, Aguilar instructed Cruz to take Torres and the others from Clark’s church to Phoenix. Clark walked them to the cars and said good-bye. Aguilar assisted Joel Morelos and his wife Gabriela in entering the United States illegally. Gabriela attempted an illegal entry on June 26, 1984, but she was immediately apprehended and returned to Mexico. Joel attempted to enter the same day, but he was also immediately arrested. After being held at a detention facility, he lied to an immigration judge about his nationality, forsaking his Guatemalan citizenship and claiming to be Mexican. He was returned to Mexico by the INS on July 2, 1984. He stayed at Aguilar’s house just before attempting a second illegal entry into the United States, this time successfully. Shortly after Joel reached the Sacred Heart Church on July 6, 1984, Conger and Aguilar asked Cruz to transport Joel to Conger’s church in Tucson. Gabriela Morelos and her child had also made their way across the border to reunite with Joel. On July 11, 1984, the three arrived at Darlene Nicgorski’s apartment in Phoenix. There was another alien family staying at the apartment when they arrived, and Nicgorski asked Cruz to take the other family elsewhere so the Morelos family could be sheltered. Joel told Nicgorski about his initial apprehension by the INS and his subsequent return to Mexico. He also told her about his recent successful crossing the week before. Later that day, Nicgorski arranged for the Morelos family to leave her apartment and to be harbored at another location. Nicgorski had two other Central Americans staying with her at that time. Joel told Nicgorski that he wished to be transported to Santa Fe, New Mexico, or Philadelphia, Pennsylvania. Cruz met with Nicgorski on July 20, 1984, at the Alzona Lutheran Church in Phoenix. Photographers were present taking pictures, and television interviews were being conducted for later broadcast. Nicgorski told Cruz that the Morelos family and another family were set to be transported to the northern part of the United States. The aliens were wearing handkerchiefs covering their faces. Cruz also met Wendy LeWin, who was designated to drive the Morelos family. The family loaded their luggage into LeW-in’s vehicle, and then left for Santa Fe, New Mexico. During the fourteen-hour trip, Joel shared his experiences in Guatemala with LeWin and expressed his belief that he was entitled to political asylum. Joel testified that he did not remember telling LeWin about his two recent illegal entries into the United States. He also testified that so many different persons drove his family from Santa Fe to Philadelphia, he could not recollect any of their names. Francisco Nieto and his family, Salvadorans, crossed from Mexico to Arizona in July, 1984, with the assistance of sanctuary movement workers. After crossing, they were driven to the Southside Church in Tucson where they met Fife and Nicgorski. Several days later they were driven to Phoenix to be with Nicgorski. Cruz saw Nicgorski and LeWin at the Alzona Church in Phoenix on July 22, 1984. LeWin introduced Cruz to the Nieto family, whom she described as having arrived from El Salvador. Later on, Nicgorski asked Cruz to drive some members of the Nieto family in his car to a trailer in South Phoenix. Nic-gorski drove the others in her car and Cruz followed. Nicgorski kept the family at the South Phoenix trailer for one week. She asked Cruz if he would transport the Nieto family to Albuquerque, New Mexico, and he agreed. On July 26, 1984, Cruz and other undercover agents, including Nixon, arrived to drive the family to Albuquerque, as requested. Nicgorski gave Cruz $100 for expenses. She also gave Nixon a card with names and telephone numbers of persons to contact after they arrived in Albuquerque. Because of their considerable contribution to the sanctuary movement, Cruz, agent Nixon, and another undercover informer, Soloman Graham, were invited to join meetings of the movement’s inner circle at the Southside Church. They attended such a meeting at the church on August 27, 1984. Appellants Fife, Conger, and Corbett participated, along with several other sanctuary movement members. The discussion initially focused on a group of four Salvadoran children and a woman, Elba Teresa, who were in Mexico City, Mexico, and sought assistance crossing the United States border. Fife expressed concern that if these aliens were not moved promptly, it would interfere with their efforts to smuggle 23 Guatemalans across the border. Corbett suggested that innovative methods were necessary to aid the Guatemalans, such as concealing them in cars or using remote border crossing points. Conger suggested using a border graveyard in Douglas, Arizona. Finally, Fife stated that they had to sell or trade four vehicles because they operated in border areas so frequently that the INS probably linked them to smuggling. Cruz attended another meeting on September 4, 1984, with Fife, Conger, Nicgor-ski, Peggy Hutchison and Corbett. Conger said that he had an argument with Qui-nones about smuggling the 23 Guatemalans who, in any event, already had made their way independently to Colorado. On September 10, 1984, Cruz was invited to attend his third meeting at the Southside Church. Conger, Fife, Hutchison, and others were present. The topic of discussion was how to smuggle the Elba Teresa group across the Mexican border. They debated who amongst them was most qualified to go to Mexico City to assist the aliens, but no decision was reached. Hutchison opposed sending two new recruits to the sanctuary movement, as they were too inexperienced. Hutchison and Fife subsequently brought the Elba Teresa group across the border. On October 29, 1984, Cruz and Graham were at Nicgorski’s apartment in Phoenix when the group arrived. Niegor-ski asked them to drive the group to Cano-ga Park, California. A sanctuary worker from Seattle, Washington, came along and covered most of the trip’s expenses. Cruz attended his last meeting at the Southside Church on November 26, 1984. Nicgorski, Conger, Hutchison, and others discussed plans to smuggle three separate groups of Central Americans across the border. II On January 10, 1985, the government filed an indictment that ultimately led to the conviction of appellants. Along with the indictment, the government brought a motion in limine, which essentially sought to exclude evidence that appellants believed that the 1980 Refugee Act entitled the Central American aliens to enter or reside in the United States lawfully. The government contended that appellants’ sincere belief that the aliens were refugees under the Refugee Act would not, as a matter of law, negate the specific intent that appellants had to bring the aliens surreptitiously into the United States without INS inspection. According to the government, the mere fact that appellants sought to transport the aliens into the United States without inspection satisfied the specific intent requirement under 8 U.S.C. § 1324 (1982). Consequently, pressed the government, “[w]hatever status to which the [appellants] concluded these aliens were entitled under the Refugee Act is irrelevant.” On October 28, 1985, the district court granted the government’s in limine motion. The lower court excluded from trial “evidence of [appellants’] belief that those aliens involved in the charges were refugees” based on their interpretation of the immigration laws. We review the district court’s decision to preclude a mistake of law defense under the nondeferential de novo standard. United States v. Scott, 789 F.2d 795, 797 (9th Cir.1986). A Appellants place principal reliance on the Supreme Court’s decision in Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), for their contention that they were entitled to present evidence to the jury about their interpretation of section 1324 and the 1980 Refugee Act. Section 1324 makes it a crime to knowingly or willfully smuggle, transport, or harbor an alien “not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States under the terms of this chapter or any other law relating to the immigration or expulsion of aliens.... ” Because this statute contains a legal element as part of its definition — “lawfully entitled to enter or reside within the United States” — appellants contend that Liparota permits a mistake of law defense. Liparota involved a prosecution under 7 U.S.C. § -2024(b), which provides criminal sanctions for anyone who “knowingly uses, transfers, acquires, alters, or possesses [food] coupons ... in any manner not authorized by ... the regulations.” The government argued that defendant “violated the statute if he knew that he acquired or possessed food stamps and in fact that acquisition or possession was in a manner not authorized by statute or regulations.” Liparota, 471 U.S. at 423, 105 S.Ct. at 2087. Stated differently, the government’s position was that the second half of the statute contained no mens rea requirement. Defendant urged a different reading of section 2024(b)(1), claiming that the crime requires both knowledge that he acquired or possessed the stamps and knowledge that he had done so in an unauthorized manner. Id. The Court confronted the issue, therefore, whether Congress intended this statute to contain this mens rea requirement. The Court addressed this question strictly from the perspective of statutory interpretation. Id. at 423, 424 n. 6, 105 S.Ct. at 2087 n. 6. B The government in the present case does not take issue with appellants’ characterization of the mens rea element of section 1324. Nevertheless, appellants cite to a footnote in Liparota for the proposition that section 1324 permits a mistake of law defense. The Liparota majority inserted the following footnote to defend against the dissent’s accusation that it was creating a mistake of law defense: Our holding today no more creates a “mistake of law” defense than does a statute making knowing receipt of stolen goods unlawful. In both cases, there is a legal element in the definition of the offense. In the case of a receipt-of-stolen-goods statute, the legal element is that the goods were stolen; in this case, the legal element is that the “use, transfer, acquisition,” etc. were in a manner not authorized by statute or regulations. It is not a defense to a charge of receipt of stolen goods that one did not know that such receipt was illegal, and it is not a defense to a charge of a § 2024(b)(1) violation that one did not know that possessing food stamps in a manner unauthorized by statute or regulations was illegal. It is, however, a defense to a charge of knowing receipt of stolen goods that one did not know that the goods were stolen, just as it is a defense to a charge of a § 2024(b)(1) violation that one did not know that one’s possession was unauthorized. Id. at 425 n. 9, 105 S.Ct. at 2088 n. 9 (citations omitted). This language establishes that appellants were entitled to assert as a defense to their indictment under section 1324 that they did not know that the aliens in question were unlawful. From this entitlement, appellants take the unsupported leap that they may introduce any evidence at all that would advance this defense. The meaning of Liparota does not stretch this far; it states no more than that defendant was entitled to a defense that attempted to negate an element of the crime. That case never even purported to establish the type of evidence that may be used to support a defense that a mental element defined in a criminal statute is lacking. Instead, we are guided by the prudent and deep-rooted principle of ignorantia legis non excusat and the case law. We conclude that appellants may not establish a mistake of law defense by proffering evidence of their misunderstanding of the aliens’ status which is based on their statutory construction. 1 It is axiomatic that ignorance or mistake of law is no defense. See United States v. Fierros, 692 F.2d 1291, 1294 (9th Cir.1982), cert. denied, 462 U.S. 1120, 103 S.Ct. 3090, 77 L.Ed.2d 1350 (1983); Liparota v. United States, 471 U.S. 419, 441, 105 S.Ct. 2084, 2096, 85 L.Ed.2d 434 (White, J., dissenting); see also United States v. Sherbondy, 865 F.2d 996, 1002 (9th Cir.1988) (“[Tjhere are few exceptions to the rule that ignorance of the law is no excuse.”). Legal scholars have postulated that this ancient doctrine developed out of pragmatic concerns that criminals otherwise would avoid conviction by resorting to the defense of mistake or ignorance of law as a sanctuary. “Both commentators and courts have argued that such a defense would become a shield for the guilty because ... defendant’s claim of ignorance could not ordinarily be refuted.” W. LaFave & A. Scott, Substantive Criminal Law § 5.1, at 586 (1986). Additionally, a defendant, in presenting this defense, easily could convert a trial into a protracted and unruly proceeding. Cf. id. In sum, then, at least two practical considerations underpin the doctrine disallowing a defense of ignorance or mistake of law: (a) the difficulty of refuting this defense and (b) trial management. These considerations, as applied to this case, will be addressed in reverse order. a Appellants’ attempt to admit evidence concerning their understanding of section 1324, in particular, and that section’s interaction with other immigration laws, both national and international, in general, cuts to the heart of the concern about trial management. Appellants claim the 1980 Refugee Act as the primary source for their interpretation of “lawfully entitled to enter or reside in the United States.” In demonstrating their understanding of how the Refugee Act applies to their case, appellants intended to provide a series of mini-trials as to each alien’s well-founded fear of persecution. The record makes plain that appellants, in essence, sought to overwhelm the trial judge with a barrage of evidence that would have included graphic descriptions of horrifying torture and human rights abuses in Central America. For example, counsel for appellants instructed the judge that he must “listen[ ] to the [aliens’] testimony ... as to whether or not these folks are unlawfully here.” This must be done, appellants continued, for “each and every alien” in order to “prove that defendants knew that these [aliens] were not entitled to be here under the 1980 Refugee Act.” Appellants also rely on international law for their understanding of the immigration laws. In their memorandum in opposition to the government’s in limine motion, they argued that they believed that international law rendered the aliens lawfully entitled to enter or reside here. At the hearing on this motion, the government’s counsel informed the court that one objective for the motion was to avoid “cross-examining all these aliens about let me hear your life history from the time that you were first born and grew up in San Salvador.” Appellants’ utter silence in the face of this concern is revealing; they did nothing to assuage the government’s fears. b It is clear, therefore, that a rule which would allow appellants essentially to put Reagan Administration foreign policy on trial would be foolish. A trial as appellants envisaged not only would have been interminable, but also would have placed an intolerably difficult burden on the government — to refute appellants’ claim of their mistaken understanding of the law. The Court in Liparota was mindful of the importance of not placing “an unduly heavy burden on the Government in prosecuting violators” of federal crimes, 471 U.S. at 434, 105 S.Ct. at 2092, but concluded that it had not transgressed its own admonition. The government in that case, for example, could “introduce[] evidence that petitioner bought food stamps at a substantial discount from face value ...[,] that he conducted part of the transaction in a back room of his restaurant ...[,] and that [the] food stamps themselves are stamped ‘nontransferable.’ ” Id. at 434 n. 17, 105 S.Ct. at 2093 n. 17. In contrast, it is hard to imagine what evidence the government in this case could have mustered to rebut appellants’ purported understanding of section 1324 and the Refugee Act of 1980; this would be tantamount to requiring the government to prove a negative. 2 The case law also supports the conclusion that appellants could not introduce evidence of their alleged mistaken view of the immigration laws. Preliminarily, it is useful to reexamine the types of possible fact situations that troubled the Court in Liparota. The Court worried that “[a] strict reading of the statute with no knowledge-of-illegality requirement would thus render criminal a food stamp recipient who, for example, used stamps to purchase food from a store that, unknown to him, charged higher than normal prices to food stamp recipients.” Liparota, 471 U.S. at 426, 105 S.Ct. at 2088-89. The hypothetical food stamp recipient, no doubt, should be allowed to introduce evidence that he was unaware that the store charged exorbitant prices. Liparota, therefore, sanctioned a defense that would negate the mens rea component defined in the statute by permitting factual evidence of the circumstances as the defendant perceived them to be. This interpretation of Liparota is consistent with our decision in United States v. Fierros, 692 F.2d 1291 (9th Cir.1982), where we analyzed the ignorance or mistake of law defense in the context of a section 1324 prosecution. See also United States v. Sherbondy, 865 F.2d 996, 1002 (9th Cir.1988) (citing Fierros’s entire ignorance of law discussion for the proposition that “ignorance of law is no defense to charge of knowingly or willfully harboring an alien in violation of 8 U.S.C. § 1324(a)”). Specifically, we examined the very claim made in Liparota — that defendant was “ignorant of an independently determined legal status or condition that is one of the operative facts of the crime.” Fierros, 692 F.2d at 1294. We began our examination in Fierros with a discussion of United Stales v. Petersen, 513 F.2d 1133 (9th Cir.1975): In that case defendant was charged with embezzlement or theft of federal property in violation of 18 U.S.C. § 641, a crime requiring proof of specific intent. We held there that Petersen was entitled to an instruction on his defense that he reasonably believed that the person from whom he bought the property was legally authorized to sell it. In such a case, the mistake of the law is for practical purposes a mistake of fact. Fierros, 692 F.2d at 1294. Applying the teaching of Petersen to a case in which a defendant is accused of violating section 1324, we then illustrated the type of defense that properly could be presented. “This type of defense would have been available to appellants in this case if, for example, they had asserted reasonable grounds to believe that the workers were not aliens or that they had been legally admitted to the United States.” Id. Significantly, these illustrations depict defendant’s understanding of the factual events that formed the basis for prosecution. If the facts were as defendant supposed, he would not have the requisite culpability prescribed by the statute. Our holding, which prevents appellants from offering evidence of mistake premised on an erroneous construction of the immigration laws, is also consistent with established Fifth Circuit authority. United States v. Merkt, 764 F.2d 266 (5th Cir.1985) (Merkt I) is squarely on point. There defendant was charged with transporting illegal aliens in violation of section 1324(a)(2). Defendant proffered the defense that she lacked the requisite knowledge that the aliens were “in the United States in violation of the law.” Similar to appellants in the present case, she claimed a good faith belief in the legality of the aliens based on the Refugee Act. The court rejected this defense. Id. at 273; see also United States v. Merkt, 794 F.2d 950, 965 n. 18 (5th Cir.1986) (reaffirmation by different panel of Merkt I’s rejection of this defense), cert. denied, 480 U.S. 946, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987). We come to the same conclusion. Ill Appellants contend that the district court erred in instructing the jury that an alien is not lawfully entitled to enter or reside in the United States as a political refugee unless the alien has filed an application for political asylum. The court granted appellants’ requested jury instruction that “the Government must prove beyond a reasonable doubt that an alien was not lawfully entitled to enter or reside within the United States as defined in this instruction.” But the court rejected appellants’ additional requested instruction that “a person who is a ‘refugee’ within the meaning of the Refugee Act of 1980 is entitled to enter and reside in the United States.” A Essentially, the court instructed the jury that a person may not lawfully enter the United States unless he is duly admitted by an immigration officer. Significantly, however, the court provided for the possibility that an alien may be lawfully entitled to reside here subsequent to an illegal entry if he has filed an application for political asylum and has been released pending a final ruling on his application. The court instructed the jury that “once an alien has been processed by an [INS] agent and released from custody, following an unlawful entry he may reside in the [United States] pending further order.” (emphasis added). The court specifically instructed the jury to find appellants not guilty on charges of transportation or harboring if an alien had been previously “processed and released by the [INS].” But the court also instructed that prior to an alien’s having “file[d] an asylum application,” the alien was not lawfully entitled to reside in the United States. B The district court’s instruction was proper. Section 1324 prevents the bringing in, transporting, or harboring of any alien “not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the [United States] under the terms of this chapter or any other law relating to immigration.” Appellants’ requested instruction, that refugees are lawfully entitled to enter and reside in the United States, improperly implies that an alien is entitled to enter and reside here without complying with the procedural formalities of the immigration laws. 1 Since its amendment by the 1980 Refugee Act, the Immigration and Nationality Act has provided two distinct methods for an alien claiming political persecution in his home country to avoid deportation, one discretionary and the other mandatory. See INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 1208-09, 94 L.Ed.2d 434 (1987); Vilorio-Lopez v. I.N.S., 852 F.2d 1137, 1140 (9th Cir.1988). Section 208(a) of the Act, 8 U.S.C. § 1158(a), authorizes the Attorney General, in his discretion, to grant asylum to an alien having a well-founded fear of persecution in his home country. This section permits the Attorney General to grant an asylum application based upon the alien’s subjective fear of persecution where this fear “has enough of a basis that it can be considered well-founded.” Vilorio-Lopez, 852 F.2d at 1140. The alien need not demonstrate that it is more likely than not that he will be subject to persecution if deported. Cardoza-Fonseca, 480 U.S. at 450, 107 S.Ct. at 1222. Section 243(h) of the Act, 8 U.S.C. § 1253(h), prohibits the Attorney General from deporting an alien “who demonstrates that his ‘life or freedom would be threatened’ on account of one of the listed factors if he is deported.” Cardoza-Fonseca, 480 U.S. at 423, 107 S.Ct. at 1209. This section is a mandatory limitation of the Attorney General’s power to deport an alien demonstrating that it is more likely than not that he will be subject to persecution in the country to which he would be deported. There are important procedural and substantive differences between sections 208(a) and 243(h). An application for asylum pursuant to section 208(a) has no necessary relationship to deportation proceedings. An alien can file an application for asylum pursuant to section 208(a) before deportation proceedings have begun. Bolanos-Hernandez v. I.N.S., 767 F.2d 1277, 1281 (9th Cir.1984) (citing 8 C.F.R. § 208.3(a)(2) (1983)). Indeed, an alien can file a section 208(a) asylum application after deportation proceedings have terminated. See 8 C.F.R. § 208.11 (1984). By contrast, an alien can only seek to invoke section 243(h)’s mandatory prohibition against deportation in the course of a deportation proceeding, although such an application is also treated as a request for discretionary asylum under section 208(a). See 8 C.F.R. § 208.3(b). While the Attorney General cannot deport an alien making out a successful case under section 243(h), the alien is clearly far better off if he also receives a favorable ruling on his section 208(a) application for discretionary asylum. Bolanos-Hernandez, 767 F.2d at 1288 n. 19. For instance, a successful section 208(a) applicant may seek permanent residency after one year, while no such entitlement is available to an alien who only has obtained a favorable section 243(h) ruling. See 8 C.F.R. § 209.2. 2 Appellants’ principal argument is that no asylum application is necessary to render an alien lawfully entitled to enter or reside in the United States. “Thus, a person’s status as a refugee does not depend on whether that status has received official acknowledgment; an alien is a refugee under the law before he is officially granted asylum.” The district court relied on Fifth Circuit precedent to reject this proposition. In United States v. Pereira-Pineda, 721 F.2d 137, 139 (5th Cir.1983), the court held that “[t]he mere possibility that [an alien] may file asylum applications at some point in the future, and thus be allowed to remain at liberty under bond or parole while their right to asylum is determined, does not make them — from the moment they enter this country — entitled to ‘reside’ here for the purpose of section 1324(a)(2).” The district court below, as noted, instructed the jury that where an alien had filed an application for asylum and had been processed and released, appellants could not be convicted of transporting or harboring because the alien was lawfully entitled to reside in the United States. 3 None of the aliens relevant to this case had filed political asylum applications prior to appellants’ arrests. Nonetheless, appellants contend that the jury instructions were improper because “[t]he overall structure of U.S. refugee law presupposes that bona fide refugees are lawfully entitled to enter this country, by whatever means, and apply for asylum.” As support, they cite the 1980 Refugee Act, which changed the law by permitting undocumented aliens already in the United States to file asylum applications. See Cardoza-Fonseca, 480 U.S. at 433, 107 S.Ct. at 1214 (“Prior to the 1980 amendments there was no statutory basis for granting asylum to aliens who applied from within the United States.”). Appellants reason that this change acknowledges an alien's right to cross our borders without due presentment. That Congress created a mechanism for those illegal aliens already inside this country to apply for political asylum hardly amounts to granting illegal aliens a license to cross our borders without being duly admitted. Congress has simply recognized that large numbers of undocumented aliens are in fact within our borders and established an administrative procedure to cope with this reality. It did not proclaim that anyone considering himself the victim of political persecution can cross our borders by stealth and then studiously avoid the authorities in perpetuity. Even a successful asylum applicant remains subject to criminal prosecution for previous immigration law violations, such as failing to have been duly admitted to the United States pursuant to section 1325. See 8 C.F.R. § 208.12 (1984). 4 In United States v. Rodriguez-Rodriguez, 840 F.2d 697 (9th Cir.1988), the court examined the element of section 1324 requiring the alien to be in the United States in violation of law. Defendants in Rodriguez were convicted of transporting undocumented aliens under section 1324. The court rejected their contention that the aliens’ mere eligibility for an adjustment of status pursuant to the Immigration Reform and Control Act of 1986 rendered the aliens lawfully entitled to reside in the United States. The Rodriguez court found that as the aliens had not filed applications for an adjustment of status, their mere ability to have done so did not render them lawfully entitled to reside in the United States. The court specifically relied upon the analogous Pereira-Pineda case and described it as having “held that the possibility that aliens might apply for asylum, allowing them to remain at liberty while their rights were determined, did not mean the aliens resided lawfully in the United States before applying for asylum.” Rodriguez, 840 F.2d at 700. We adopt the Pereira-Pineda court’s holding that an alien must file an application for political asylum in order to be lawfully entitled to reside in the United States pending a final ruling. Appellants argue that the Pereira-Pineda decision incorrectly focuses only upon the role of a discretionary application for asylum pursuant to section 208(a). Appellants argue that section 243(h) provides an independent explanation of why the aliens they assisted were legally entitled to reside in the United States. As the government cannot deport any alien demonstrating a likelihood of persecution, an alien facing such a likelihood is legally entitled to reside here from the moment he crosses into the United States, according to appellants. Appellants’ argument, however, as with their suggested construction of the application provisions of section 208(a), overlooks the procedural formalities of the immigration laws. An alien must file an asylum application under either section 208(a) or 243(h). See 8 C.F.R. §§ 208.3(b) & 208.-10(a) (1984). While a section 243(h) application provides a defense to a deportation proceeding and can only be filed subsequent to the institution of such proceedings, the application is nonetheless necessary in order for an alien to be able to invoke relief under section 243(h). Appellants’ contention that section 243(h) renders all undocumented aliens legal residents until the government proves differently at a deportation hearing has no support in logic or precedent, and we reject it. C Finally, the court rejects appellants’ contention that international law entitled the aliens to reside in the United States without presenting themselves to immigration authorities and filing applications for political asylum. Appellants succinctly describe their international law claim: “[Vjiolations by the United States of its obligations under the 1967 [U.N. Refugee] Protocol excused the refugees being assisted by appellants from presenting themselves to the INS and established ‘good cause’ for their illegal entry and presence.” Appellants offer no authority for this court’s ability to force the government to conform to supposed international law obligations. “[I]n enacting statutes, Congress is not bound by international law ... [;i]f it chooses to do so, it may legislate [contrary to] the limits posed by international law.” United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir.1983), modified on other grounds, 728 F.2d 142 (2d Cir.1984). For appellants’ argument to have any coherence, they must contend that the Executive Branch has refused to comply with binding international law obligations. The question then arises whether any such obligations have the force of law. Appellants note that section 1324 provides that an alien is judged to be lawfully entitled to enter or reside in the United States “under the terms of this chapter or any other law relating to the immigration or expulsion of aliens.” Appellants contend that the “any other law” language incorporates international law. Indeed, the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(17), defines law as “all laws, conventions, and treaties of the United States relating to immigration, exclusion, deportation or expulsion of aliens.” The only relevant convention or treaty appellants identify is the United Nations Protocol Relating to the Status of Refugees, to which the United States is a party. Congress intended the definition of “refugee” in the 1980 Refugee Act to be interpreted in conformance with the Protocol. Cardoza-Fonseca, 107 S.Ct. at 1216. The United Nations has produced a Handbook which provides “significant guidance in construing the Protocol, to which Congress sought to conform.” Id. at 1217 n. 22 (referring to the Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva 1979)). But neither the Handbook nor the Protocol have the force of law, as “the determination of refugee status ... is incumbent upon the Contracting State in whose territory the refugee finds himself.” Id. (quoting the Handbook). The Protocol was not intended to be self-executing. INS v. Stevie, 467 U.S. 407, 428 n. 22, 104 S.Ct. 2489, 2500 n. 22, 81 L.Ed.2d 321 (1984). As the Protocol is not a self-executing treaty having the force of law, it is only helpful as a guide to Congress’s statutory intent in enacting the 1980 Refugee Act. Consequently, the district court correctly concluded that the Protocol is not “other law” under section 1324. Furthermore, the Protocol provides no evidence that Congress intended to permit aliens to reside in the United States without presenting themselves to immigration authorities. Quite the contrary. Indeed, appellants acknowledge that the Protocol, incorporating Article 31(1) of the 1951 Convention, requires that an alien refugee present himself to immigration authorities “without delay” following illegal entry into a foreign land. The district court therefore properly rejected appellants’ argument that the Act does not require presentment following an illegal entry. Finally, appellants argue that the international law norms of temporary refuge, humanitarian initiative, and nonrefoulement are self-executing and binding sources of law justifying appellants’ actions. First, the Immigration Act’s definition of “law” does not include international norms; only conventions and treaties. Second, these norms have nothing whatsoever to say about presentment following illegal entry, which the Protocol expressly requires. Appellants’ position on these matters is meritless. IV Aguilar contests her conviction under section 1324(a)(1) for “bringing in” Ana Benavidez on May 24, 1984. The trial court instructed the jury that each substantive count of the indictment required the government to prove that the alien had made an entry into the United States. The court defined “entry” as “a crossing into the territorial limits of the United States in either: One, inspection and admission by an immigration officer; or two, an actual and intentional evasion of inspection.” Aguilar argues that the district court erred by rejecting appellants’ proposed instruction on the definition of “enter.” A The government does not dispute that a section 1324(a)(1) “brings into” conviction requires the alien to enter the United States. In United States ¶. Bunker, 532 F.2d 1262, 1265 (9th Cir.1976), the court stated “[w]e agree that an illegal entry has been at the core of essentially all prosecutions under [section 1324(a)(1)].” As the government correctly notes, Aguilar’s statement of the facts essentially concedes that she obtained a fraudulent entry document and gave it to Benavidez for the purpose of effecting Benavidez’ illegal entry into the United States. She helped Benavidez use make up and hair rollers to change her appearance to that of the picture on the fraudulent entry document, and she coached Benavidez how to lie to immigration officials at the border. Aguilar walked in front of Benavidez through the check point and then the two joined up and walked to the Sacred Heart Church. Bena-videz returned the fraudulent entry document to Aguilar along the way. 1 Appellants requested the following jury instruction: There is no violation of the statute making it a crime to bring an illegal alien into the United States unless the alien has “entered” this country. To accomplish an “entry” within the meaning of the statute, an alien must be present in the United States and be free of official restraint. Thus, unless you find that the alien a defendant is alleged to have brought in was free of official restraint at the time of the acts charged in the Indictment, you must acquit defendant. In United States v. Oscar, 496 F.2d 492 (9th Cir.1974), the court reversed defendant’s conviction for aiding and abetting two aliens attempting to enter the United States by eluding inspection under section 1325. Section 1325 makes it a misdemean- or for an alien to effect an illegal entry into the United States, while section 1324(a)(1) makes it a felony to bring in an alien making an illegal entry. As defendant in Oscar was charged with aiding and abetting the entry of aliens, the court’s resolution of the central issue whether the aliens actually had entered the United States applies equally to section 1324, which also requires proof of an entry. The Oscar court accepted defendant’s theory that an entry “has not been accomplished until physical presence is accompanied by freedom from official restraint.” Id. at 493. The court found that the aliens defendant was accused of aiding and abetting had not entered the United States, although “they physically crossed the international border upon arrival at the Port of Entry.” Id. The aliens were never free from official restraint because immigration inspectors were suspicious from the outset and arrested them at a secondary inspection area. The critical aspect of the Oscar decision is its adoption of the definition of “entry” derived from deportation cases. In the deportation setting, an alien is entitled to certain procedural protections once he has entered the United States. Illegal aliens who technically had crossed the international border but were in the constructive custody of immigration authorities at that time are not said to have entered the United States. Continuous surveillance by immigration authorities can be sufficient to place an alien under official restraint. The Oscar court held that the definition of entry in the deportation context applies with equal force to a criminal prosecution under section 1325. “It is unlikely that Congress would define a term in § 1101 for use throughout Chapter 12 if it intended the term to have different meanings in different sections of the chapter.” Oscar, 496 F.2d at 494. The district court clearly did not accept this definition of entry. In rejecting appellants’ requested instruction, the court stated “[a]nd I also believe that the official restraint with respect to a smuggling case, using that term with respect to 1324 issues, is not the law.” The government argues that appellants’ requested instruction “illustrates the inappropriate application of the official restraint doctrine as developed in civil deportation/exclusion hearing issues to the criminal feature of ‘entry’ in 1324(a)(1).” But the Oscar decision is the law of this circuit and we are bound by it. The government also fails to establish that Oscar is in conflict with either United States v. Harding, 432 F.2d 1218 (9th Cir.1970), or United States v. Martin-Plascencia, 532 F.2d 1316 (9th Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976). 2 “A trial court must instruct the jury on a defendant’s theory of the case only if the evidence sufficiently supports the theory and the theory is supported by the law.” United States v. Sommerstedt, 752 F.2d 1494, 1496 (9th Cir.), amended, 760 F.2d 999 (9th Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 149, 88 L.Ed.2d 123 (1985). As demonstrated above, the Oscar decision amply supports appellants’ legal theory. But the question remains whether the district court “properly rejected [the proposed instruction] as not applicable to the facts of this case.” United States v. Cervantes, 542 F.2d 773, 778 (9th Cir.1976) (quoting United States v. Makekau, 429 F.2d 1403, 1404 (9th Cir.), cert. denied, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141 (1970)). Aguilar contends that she established facts sufficient to warrant her freedom from official restraint instruction. She cites informer Cruz’s transportation of Aguilar and Benavidez to the border crossing and his observation of the two entering the United States. Cruz also had alerted border control agents, through filing control load sheets, “of the tentative smuggling activities ... in order that the aliens would not be intercepted by the agents.” These control sheets alerted border area law enforcement officials that Aguilar and Benavidez were connected to an ongoing investigation and were not to be arrested. The government argues that Aguilar must demonstrate that Benavidez “was under official restraint before and at all times after her illegal entry.” (emphasis added). The aliens in Oscar were “never free from the official restraint of the customs officials” because they were arrested at the border. Oscar, 496 F.2d at 493 (emphasis added). Similarly, the Board of Immigration Appeals statement concludes that surveillance prior to an arrest is official restraint because the alien “lacks the freedom to go at large and mix with the population.” Matter of Pierre, BIA Interim Decision # 2239 (October 5, 1973). By contrast, Benavidez stayed at her parents’ home from shortly after her entry with Aguilar on May 24, 1984, until her arrest on January 14, 1985. The government is correct that, pursuant to our Oscar decision, an alien must be under official restraint at all times during and subsequent to physical entry in order to void a section 1324 conviction. Consequently, the question is whether there was any evidence from which a jury could find that Benavidez was under official restraint during the seven months she resided in the United States before her arrest. Aguilar argues that Benavidez was under official restraint during her entire residency in the United States due to alleged daily visits to her house by Cruz. Yet the rationale for the official restraint doctrine does not support a finding that such brief visits constitute official restraint. The 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. Martin-Plascencia, 532 F.2d 1316. It is clear that Benavidez exercised such free will in the seven months she lived with her parents. Cruz’s short visits were insufficient to prevent her from escaping. Neither was she free on bond pending a formal immigration hearing, a form of constructive custody. In short, there was no evidence from which a jury could find that Benavidez was under official restraint during her entire residency in the United States. Consequently, the district court did not err in rejecting appellants’ requested instruction. B Finally, Aguilar’s motion for judgment of acquittal contends that the evidence does not support a finding that she brought Benavidez into the United States within the meaning of section 1324. Aguilar relies almost exclusively upon a 1927 Sixth Circuit decision, McFarland v. United States, 19 F.2d 805 (6th Cir.1927). Defendant in McFarland met with his son in Canada and provided him with another person’s entry documents. The two then crossed into the United States by ferryboat where defendant proceeded through immigration. The court concluded that section 1324 was “distinctly inappropriate, although not necessarily inapplicable, to one who persuades or aids the immigrant to take himself by public conveyance up to the inspection line for examination.” Id. at 806. McFarland was decided under the predecessor to the section 1324(a)(1) at issue in this case. That section emphasized that “bringing in” included being brought in “by vessel or otherwise.” The court in United States v. Washington, 471 F.2d 402, 405 n. 2 (5th Cir.1973), cert. denied, 412 U.S. 930, 93 S.Ct. 2759, 37 L.Ed.2d 158 (1973), distinguished McFarland on the basis that the statute was amended to read “by any means of transportation or otherwise.” This amendment made “an interpretation which limits the meaning of ‘or otherwise’ to only certain forms of transportation an unreasonable reading of the statute.” Id. The court in Washington upheld the conviction of defendant under section 1324(a)(1). He purchased airline tickets for the aliens and supplied them with fraudulent identification papers. He traveled with them by plane from the Bahamas to Ft. Lauderdale, Florida. This conduct is similar to Aguilar’s conduct. She procured false papers for Benavidez and coached her to lie to immigration authorities. Cruz drove Aguilar and Benavidez to the border, where Aguilar walked ahead of Benavidez through immigration. The two met up immediately thereafter and walked to the church. The Washington court was satisfied that the aliens did not “t[ake] themselves” to the border. Surely the same can be said for Benavidez, a thirteen-year-old girl. V Conger was convicted in count 26 of aiding and abetting Alejandro Rodriguez’s illegal entry into the United States. Defendant Quinones was convicted in count 28 of aiding and abetting Jose Ruben Torres’s illegal entry into the United States. Conger and Quinones appeal the district court’s refusal to give the jury an “official restraint” instruction regarding the entries of Rodriguez and Torres. We conclude in the preceding section that while an entry requires freedom from official restraint, the evidence must warrant such an instruction. The issue is whether there was evidence from which a jury could find that Rodriguez and Torres were under official restraint during their entire stay in the United States. A Appellants contend that the evidence shows that these aliens never entered the United States. In both cases Cruz knew the date and time of the planned crossings, and he alerted INS border officials to ensure that they would not be apprehended. In contrast to Aguilar, however, Cruz did not conduct surveillance of the aliens as they crossed the border. In addition, these aliens crossed through a hole in the border fence, rather than the official port of entry Benavidez used. The aliens were not subject to constant surveillance subsequent to their initial physical entry. Appellants rely entirely upon the INS’s advance notice of the crossing as warranting the requested official restraint instruction. But as the aliens did not cross at an official port of entry, they were not in close proximity to immigration officials at the point of physical entry. Instead, immigration officials in the general area of the illegal entries were alerted. This distinction in the proximity of immigration authorities is important because the official restraint inquiry centers upon an alien’s freedom from official scrutiny. In addition, as with Benavidez, Rodriguez and Torres were in the United States for about eight months prior to their eventual arrests. Conger does not even allege that these aliens were under INS scrutiny for their entire stay in the United States. Under these circumstances, we hold that the evidence was insufficient to warrant an official restraint instruction. B Quinones and Conger also argue that the district court improperly rejected their proposed jury instruction on the first amendment. The court instructed the jury that it must determine whether appellants performed the alleged substantive offenses with the intent to violate the law or “merely joined together for the purpose of engaging in activities protected by the First Amendment.” But appellants desired an instruction that their expression was protected unless it was intended and likely to produce or incite an imminent lawless act. Appellants rely upon United States v. Freeman, 761 F.2d 549 (9th Cir.1985), cert. denied, 476 U.S. 1120, 106 S.Ct. 1982, 90 L.Ed.2d 664 (1986), in which defendant was charged with aiding and abetting violations of the tax laws by counseling noncompliance with the tax laws at various seminars he conducted. The court found that “[wjhere there is some evidence ... that the purpose of the speaker or the tendency of his words are directed to ideas or consequences remote from the commission of the criminal act, a defense based on the First Amendment is a legitimate matter for the jury’s consideration.” Id. at 551. Based upon the trial court’s failure to give such an instruction, the court reversed defendant’s convictions connected with the counts alleging only counseling. The Freeman decision established as a threshold for a first amendment jury instruction that there be “some evidence” that defendant’s purpose or the likely effect of his words was-“remote” from the commission of the crime. Appellants argue that the evidence against Quinones and Conger shows “that they did nothing more than point out a church on the other side of the border and a hole in the international border fence; a hole that ‘a lot of people go through.’ ” The government responds that there was no evidence that these two defendants intended their actions to be remote from the commission of a crime. Conger drove Rodriguez to a hilltop and told him “there is the hole where you can go through, and those steeples or towers that you can see there is the Church of the Sacred Heart in Nogales, Arizona. That’s the way you have to walk to get to the church.... Once you get to the church, you will have no problems with being arrested.” Conger asked Cruz to give Rodriguez a history of Mexico so that he could pass himself off as a Mexican if apprehended. Conger told Cruz that “they” were going to smuggle Rodriguez into the United Sta