Khakhn v. Holder, Jr. , 371 F. App'x 933 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
April 5, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
LAKHVIR GURPAL KHAKHN,
Petitioner,
v. No. 08-9544
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before LUCERO, PORFILIO, and ANDERSON, Circuit Judges.
Petitioner Lakhvir Gurpal Khakhn petitions for review of an immigration
officer’s (IO) May 2008 decision ordering him removed by reinstatement of a
prior removal order. 1 He first argues that the reinstatement statute, 8 U.S.C.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
We acknowledge that the documents in the administrative record refer to
Mr. Khakhn by various aliases. Neither party disputes that Mr. Khakhn is the
individual referenced therein. Mr. Khakhn asserts in a footnote in his appellate
brief that his real name is Lakhvir Singh but refers to himself as Lakhvir Gurpal
(continued...)
§ 1231(a)(5) does not facially apply to him. He then argues that if § 1231(a)(5)
does apply to him, (1) the LIFE Act prohibits reinstatement because he applied
for adjustment of status thereunder; 2 (2) 8 U.S.C. § 1255a(e)(2) prohibits
reinstatement of his prior removal order until his legalization application has been
adjudicated, and (3) application of § 1231(a)(5) is impermissibly retroactive
because he applied for legalization prior to that statute’s enactment. We deny
Mr. Khakhn’s petition for review. 3
I. Factual and Procedural Background
Mr. Khakhn, a native and citizen of India, entered the United States from
Canada around 1980. He lived California until 1998. He admitted in a sworn
2003 statement that he traveled to Canada for a few months in 1987, then returned
to the United States without inspection. He also traveled to Canada in 1989 and
was arrested on his attempted reentry. He admitted he was deportable and applied
for voluntary departure in lieu of deportation. An Immigration Judge entered a
1
(...continued)
Kahkhn throughout for ease of use. We shall do the same.
2
The “Life Act,” as used herein, refers both to the Life Act, Pub. L. No.
106-553, 114 Stat. 2762A-142 through 149 (2000), and LIFE Act Amendments of
2000, Pub. L. No. 106-5545, 114 Stat. 2763A-324 through 328 (2000).
3
We previously abated this matter due to an outstanding administrative relief
proceeding. As Mr. Khakhn has now informed the court that the administrative
relief proceeding has ended and that he does not seek review of the outcome in
that proceeding, our previous abatement order is hereby lifted. The government’s
motion to dismiss is denied.
2
summary order allowing Mr. Khakhn until October 5, 1989, to voluntarily depart.
The decision included an alternate deportation order to become “immediately
effective” upon Mr. Khakhn’s failure to voluntarily depart by October 5. Admin
R. at 2. Under that order, Mr. Khakhn was to be deported “without further notice
or proceedings” to Canada or, if Canada would not accept him, to India. Id.
Mr. Khakhn was released from custody after posting bond. He alleges,
based on his 2003 statement, that he left the United States for Canada before
October 5, 1989; crossed into Canada without inspection; and was then smuggled
back into the United States in early 1990. See id. at 27. Other than his 2003
statement, there is no evidence to support this assertion. A Warrant of
Deportation was entered against him dated November 7, 1989, and the
government considered his bond to be breached as of February 23, 1990.
In March 1990, Mr. Khakhn filed a Form I-687 application for legalization
under 8 U.S.C. § 1255a. At some unknown time, he again left the United States.
He reentered the United States in December 1998, using a fraudulent Indian
passport and United States visa with his picture and someone else’s name. He
moved to Washington and filed a LIFE Act application for adjustment of status in
March 2002. He moved to Nevada and appeared for an interview on his LIFE Act
application in January 2003. He was taken into custody on the basis of the
outstanding 1989 deportation warrant. He was released on bond, but, after his
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LIFE Act application was denied in September 2003, he again failed to report for
deportation.
Mr. Khakhn was arrested in January 2008. In April 2008, he was issued a
notice of intent to reinstate his 1989 deportation order under § 1231(a)(5).
Although not in the record, Mr. Khakhn evidently made a statement contesting
this notice, but a supervisory IO determined that he was “subject to removal
through reinstatement of the prior [removal] order” based on his review of “all
available evidence, the administrative file and any statements made or submitted
in rebuttal.” Id. at 1. His petition for review of that order is now before us.
II. Analysis
We have jurisdiction over Mr. Khakhn’s petition because a reinstatement
order made by an IO is a “final order of removal” reviewable under 8 U.S.C.
§ 1252(a)(1). See, e.g., Berrum-Garcia v. Comfort, 390 F.3d 1158, 1162 (10th
Cir. 2004).
A. Requirements for Reinstatement. Mr. Khakhn contends that he does not
meet the facial requirements for reinstatement. Reinstatement orders are issued
pursuant to § 1231(a)(5), which provides:
If the Attorney General finds that an alien has reentered the
United States illegally after having been removed or having departed
voluntarily, under an order of removal, the prior order of removal is
reinstated from its original date and is not subject to being reopened
or reviewed, the alien is not eligible and may not apply for any relief
under this chapter, and the alien shall be removed under the prior
order at any time after the reentry.
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An IO must make three determinations: (1) ‘the alien has been subject to a prior
order of removal’; (2) ‘the alien is in fact an alien who was previously removed’;
and (3) ‘the alien unlawfully reentered the United States.’” Garcia-Marrufo v.
Ashcroft, 376 F.3d 1061, 1064 (10th Cir. 2004) (quoting 8 C.F.R. § 241.8).
1. Prior Removal Order. Mr. Khakhn first argues that he has not been
subject to a prior order of removal because he timely departed from the United
States, thus, the 1989 order never became a removal order. In reinstating the
order, the IO relied on the agency’s 1989 administrative determination that
Mr. Khakhn failed to leave the country in a timely manner, and its subsequent
issuance of the deportation warrant. Based on his 2003 statement, Mr. Khakhn
asserts that he timely departed in 1989 to Canada without inspection. He admits
he did not surrender for deportation when ordered to do so, and made no attempt
to get the bond money returned, which was declared breached in 1990. Other
than his 2003 statement, there is no evidence to support his assertion that he
timely departed. In short, he has made no colorable showing of a timely
departure. We therefore find no error in the IO simply relying on the agency
records. There is a presumption of regularity that attaches to such administrative
procedures, and we will not assume, absent clear evidence to the contrary, that the
agency erred in determining that he failed to timely depart. See Yuk v. Ashcroft,
355 F.3d 1222, 1232 (10th Cir. 2004); Bar MK Ranches v. Yuetter, 994 F.2d 735,
740 (10th Cir. 1993). No such evidence has been presented.
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2. Illegal Reentry. Mr. Khakhn next argues that his December 1989 return
to the United States was not an illegal reentry for purposes of § 1231(a)(5)
because he “was admitted and inspected by an [IO] when he reentered the U.S.”
Pet’r Br. at 9. We disagree.
The question of whether reentry after inspection and admission by an IO,
but through the use of fraudulent entry documents, is an illegal reentry, is a
question of law that we review de novo. Ochieng v. Mukasey, 520 F.3d 1110,
1113 (10th Cir. 2008). Mr. Khakhn’s argument is that any entry that follows
inspection and authorization by an IO should be considered a “legal” entry for the
purposes of reinstatement under 8 U.S.C. § 1231(a)(5). To the contrary, we held
in Lorenzo v. Mukasey that an alien who entered in the back seat of a car without
questioning by officials illegally entered for purposes of § 1231(a)(5), because
aliens entering without proper documentation were “inadmissible” and because
the alien in question had been previously removed and was not eligible for legal
admission at the time of reentry. 508 F.3d 1278, 1283 (10th Cir. 2007). Thus, we
conclude that Mr. Khakhn met the facial requirements for reinstatement under
§ 1231(a)(5).
B. LIFE Act and Amendments. Mr. Khakhn next argues that “[s]ection
1104(g) of the LIFE Act explicitly prohibits the DHS from reinstating prior
deportation orders against LIFE Act applicants.” Pet’r Br. at 11. That section
reads: “Section 241(a)(5) [8 U.S.C. § 1231(a)(5)] of the Immigration and
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Nationality Act shall not apply with respect to an alien who is applying for
adjustment of status under this section.” 114 Stat. 2763A-325. But Mr. Khakhn
is no longer “applying” for adjustment of status under the LIFE Act; his
application was denied in 2004. He argues that anyone who applies for
adjustment of status under the LIFE Act is permanently immune to reinstatement
because the statute could have been written to more clearly state that immunity
from reinstatement lasts only until a final determination is made on the
application. This argument is without merit. Congress’ use of the present
participle is unambiguous. Under Mr. Khakhn’s strained interpretation, every
alien who illegally reentered the country after removal would simply file a LIFE
Act application when apprehended, and be forever immune from reinstatement, an
absurd result.
C. 8 U.S.C. § 1255a. Finally, Mr. Khakhn asserts that he is not subject to
reinstatement because he applied for legalization under 8 U.S.C. § 1255a in
March of 1990 and his Form I-687 application has not yet been adjudicated.
Pursuant to § 1255a “certain aliens unlawfully present in the United States
can apply to become legal residents” through a process referred to as legalization.
Proyecto San Pablo v. INS, 189 F.3d 1130, 1134 (9th Cir. 1999).
1. Section 1255a(e)(2). Mr. Khakhn first asserts that § 1255a(e)(2)
prohibits reinstatement of his prior removal order until his I-687 application is
adjudicated. His three-sentence argument is conclusory and unsupported by any
7
legal analysis or relevant precedent. His argument is neither reasoned nor
adequate to merit reversal. “Arguments inadequately briefed in the opening brief
are waived . . . .” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir.
1998); see also Fed. R. App. P. 28(a)(9)(A) (“[Appellant’s] argument . . . must
contain . . . appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which appellant relies.”).
2. Impermissibly Retroactive. Mr. Khakhn argues that, if reinstatement of
his removal order is not barred by §1255a(e)(2), application of § 1231(a)(5) in his
case would have an impermissibly retroactive effect. He argues that he applied
for legalization prior to enactment of § 1231(a)(5) and reinstatement would cut
off his right to have his I-687 application for relief “completed and adjudicated in
a fair and just manner.” Pet’r Br. at 15. The government admits his I-687
application has never been adjudicated, but asserts there is no impermissible
retroactive effect because the application does not provide an avenue of relief for
Mr. Khakhn. The retroactivity of a statute is a question of law we review de
novo. Hem v. Maurer, 458 F.3d 1185, 1189 (10th Cir. 2006). We conclude that
§ 1231(a)(5) does not have an impermissible retroactive effect here because he
illegally reentered the country after the statute’s effective date.
In Fernandez-Vargas v. Gonzales, the Supreme Court held that
§ 1231(a)(5) did not have an impermissibly retroactive effect with respect to an
alien who reentered the country prior to enactment of § 1231(a)(5) because the
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statute did not affect the past act of illegal reentry but, instead, focused on the
“predicate action” of the alien’s continued illegal presence after entry. 548 U.S.
30, 44 (2006). Here, Mr. Khakhn illegally reentered the country after the
statute’s effective date. The Court clearly assumed in Fernandez-Vargas that
§ 1231(a)(5) applied to reentries after enactment of § 1231(a)(5). Mr. Khakhn is
assumed to have known, at the time he illegally reentered the country in 1998,
that § 1231(a)(5) provided that aliens in his position were ineligible for any relief
under the immigration law. See Warner v. Ashcroft, 381 F.3d 534, 538 (6th Cir.
2004) (holding that because the alien’s illegal reentry occurred after IIRIRA’s
effective date, the alien “was on notice of the consequences of his illegal reentry
before he chose to illegally reenter the United States”) ; Lopez v. Heinauer,
332 F.3d 507, 512 (8th Cir. 2003) (“Because [§ 1231(a)(5)] was in effect at the
time of [the alien’s] reentry conduct, its provisions appropriately define his
rights.). Thus, Mr. Khakhn’s retroactivity argument must fail.
Mr. Khakhn’s petition for review is DENIED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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