Gary Tomczyk v. Robert Wilkinson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY TOMCZYK, No. 16-72926
Petitioner,
Agency No.
v. A029-468-078
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent. OPINION
On Petition for Review of an Order of the
Department of Homeland Security
Argued and Submitted May 29, 2020
San Francisco, California
Filed February 3, 2021
Before: William A. Fletcher, Jay S. Bybee, and
Paul J. Watford, Circuit Judges.
Opinion by Judge W. Fletcher;
Dissent by Judge Bybee
2 TOMCZYK V. WILKINSON
SUMMARY*
Immigration
The panel granted Gary Tomczyk’s petition for review of
an order of the Department of Homeland Security (“DHS”)
reinstating his prior order of removal, and remanded, holding
that a noncitizen has not “reentered the United States
illegally” within the meaning of 8 U.S.C. § 1231(a)(5) based
solely on the fact of inadmissibility at the time of reentry.
In 1990, Tomczyk was ordered excluded and deported
after attempting to enter the United States from Canada. The
IJ’s order cited two grounds of exclusion, including one based
on a controlled substance offense, and Tomczyk was given a
form warning him of criminal penalties if he attempted to
reenter the country without prior permission within one year
of his deportation. Slightly more than one year later, he
reentered and, in 2016, DHS entered an order reinstating his
1990 deportation order under § 1231(a)(5), which allows
DHS to reinstate a prior order when a noncitizen “has
reentered the United States illegally.” Contesting the
reinstatement, Tomczyk stated that, when he reentered in
1991, he was riding in a van and was waved into the country.
The panel concluded that Tomczyk did not “reenter the
United States illegally” within the meaning of § 1231(a)(5),
holding that illegal reentry requires more than mere status of
inadmissibility. The panel explained that this case was
fundamentally different from circuit precedent where the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TOMCZYK V. WILKINSON 3
court allowed reinstatement of prior deportation orders for
noncitizens who had reentered the United States through
fraud. The panel agreed with the government’s tacit
admission that its interpretation – that any time a previously
removed noncitizen is unable to demonstrate that he was
admissible at the time of reentry, that reentry was “illegal” –
is not entitled to Chevron deference, noting that there is no
evidence that the government developed its interpretation
with a lawmaking pretense in mind and that a reinstatement
order has no precedential value.
The panel also observed that, although the Immigration
and Nationality Act (“INA”) does not define “reenter[ing] . . .
illegally,” two related sections of the INA that provide civil
and criminal penalties for certain wrongful entries, 8 U.S.C.
§ 1325, and reentries, § 1326, provide helpful guidance. The
panel explained that many inadmissible noncitizens who enter
or reenter the country do so without violating § 1325 or
§ 1326 because violation of these laws is based on the manner
and circumstances of entry or reentry, as opposed to being
based solely on inadmissibility.
The panel further explained that its conclusion was
reinforced by: 1) the INA’s provisions governing relief from
removal, almost all of which are unavailable after
reinstatement; 2) the severe practical difficulties of basing
reinstatement solely on inadmissibility at the time of reentry,
particularly if the reentry was several decades earlier; 3) the
DHS regulation governing reinstatement, which strongly
suggests that the manner and circumstances of an
inadmissible noncitizen’s reentry, rather than inadmissibility
alone, is the determinative factor; and 4) this court’s view, in
Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007)
4 TOMCZYK V. WILKINSON
(en banc), that reinstatement requires only a simple,
ministerial determination by an immigration officer.
Dissenting, Judge Bybee wrote that he would hold that an
alien who reenters while inadmissible commits an “illegal
reentry” for the purpose of § 1231(a)(5). Judge Bybee wrote
that Tomczyk was inadmissible when he entered the United
States in 1990 based on a conviction in Canada for trafficking
in a controlled substance, and his status—inadmissible—did
not change between 1990 and 1991 when he reentered. For
that reason, Judge Bybee concluded that Tomczyk’s prior
deportation order could be reinstated. Judge Bybee also
wrote that the majority’s opinion is inconsistent with this
court’s precedent and creates a circuit split with a decision
from the Tenth Circuit.
COUNSEL
Xavier Gonzales (argued), Las Vegas, Nevada, for Petitioner.
Victor M. Lawrence (argued) and Emily Anne Radford,
Assistant Directors; Jesse Lloyd Busen and Craig A. Newell
Jr., Attorneys; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
TOMCZYK V. WILKINSON 5
OPINION
W. FLETCHER, Circuit Judge:
Gary Tomczyk is a Canadian citizen. He was deported
from the United States in the summer of 1990 under a final
order of deportation. Twenty-six years later, he was taken
into custody by Immigration and Customs Enforcement in
Las Vegas, Nevada, after an arrest for driving under the
influence of alcohol. An immigration officer of the
Department of Homeland Security (“DHS”) reinstated his
prior deportation order under § 241(a)(5) of the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1231(a)(5).
Tomczyk petitions for review of the reinstatement order.
The question before us is not whether Tomczyk may be
removed from the United States. He does not contest that he
is removable. The question, rather, is whether he may be
removed pursuant to a reinstatement order. We hold that
DHS failed to apply the correct legal standard under
§ 1231(a)(5) for entering a reinstatement order. We therefore
grant the petition and remand for further proceedings.
I. Background
Tomczyk was placed in exclusion proceedings in June
1990, after attempting to enter the United States from
Canada. Following a hearing, an Immigration Judge (“IJ”)
ordered him “excluded and deported” on June 28, 1990.
Without elaboration, the IJ specified that the order was
“Pursuant to section 212(a)(20) & (23) of the Act.” See
8 U.S.C. § 1182(a)(20), (23) (1988). In 1990, § 1182(a)(20)
provided for exclusion of a noncitizen who lacked proper
documents; § 1182(a)(23) provided for exclusion of a
6 TOMCZYK V. WILKINSON
noncitizen who had been convicted of a controlled substance
offense or whom the immigration officer had reason to
believe was a controlled substance trafficker. Tomczyk states
in his brief that he had been convicted in Canada in 1971 of
possession of a controlled substance and fined $300
(Canadian). He states that he had also been convicted in
Canada in 1980 of possession of a controlled substance
(apparently marijuana) with intent to distribute and fined
$2,000, and of possession of marijuana and fined $100.
Tomczyk was deported to Canada at Frontier, Washington, on
July 2, 1990. According to his brief, Tomczyk later received
a full and unconditional pardon for his offenses, and the
convictions were expunged.
When Tomczyk was deported, he was given a Form I-
296. The form warned him that he would be subject to
criminal penalties if he attempted to reenter the United States
within one year of the date of his deportation unless he first
obtained permission from the Attorney General. In relevant
part, the warning provided:
If after your deportation is effected, you
desire to reenter the United States within one
year from the date of such deportation, you
must, prior to commencing your travel to this
country, request permission from the Attorney
General to reapply for admission to the United
States. . . .
Your reentry within one year of the date of
your deportation without the express
permission of the Attorney General will
subject you to prosecution as a felon and, if
convicted therefor, you could be sentenced to
TOMCZYK V. WILKINSON 7
imprisonment for not more than two years or
fined not more than $1000, or both.
The warning was consistent with the provisions of the INA in
effect at the time. See 8 U.S.C. § 1182(a)(16) (1988). The
warning did not specify any restrictions on reentry after the
expiration of the one-year period that began on July 2, 1990.
Tomczyk reentered the United States sometime during
July 1991, at Sumas, Washington. The administrative record
does not reflect the exact date on which he reentered, but the
government does not contest on appeal Tomczyk’s assertion
that it was more than one year after July 2, 1990. In August
2016, Tomczyk was taken into ICE custody after his arrest in
Las Vegas, Nevada, for driving under the influence of
alcohol.
Following Tomczyk’s arrest, DHS entered an order
reinstating his 1990 deportation order, reciting that
“[Tomczyk] illegally reentered the United States on or about
07/ /1991 at or near SUMAS, WA.” The reinstatement order
was signed by an immigration officer on August 15, 2016. In
a written statement contesting the reinstatement, dated
August 10, 2016, Tomczyk had written, “In 1991 when I
reentered the U.S. I was riding in a van. We were asked
where we were going and waved into the country, therefor[e]
I have never felt that I entered the U.S. illegally at that time.”
Tomczyk petitions for review of the DHS reinstatement
order.
8 TOMCZYK V. WILKINSON
II. Standard of Review
We review de novo any legal questions raised in a petition
for review of a reinstatement order. Ixcot v. Holder, 646 F.3d
1202, 1206 (9th Cir. 2011); see, e.g., Tamayo-Tamayo v.
Holder, 725 F.3d 950 (9th Cir. 2013). We review any factual
findings for substantial evidence. Ixcot, 646 F.3d at 1206.
Our review is limited to the administrative record. See
8 U.S.C. § 1252(b)(4)(A).
III. Discussion
The provision of the INA providing for reinstatement of
removal (or deportation) orders, 8 U.S.C. § 1231(a)(5),
allows DHS to reinstate a prior order when a noncitizen “has
reentered the United States illegally.” The consequences of
reinstatement for a noncitizen are profound. Unlike a
noncitizen subject to removal after a regular hearing before
an IJ under 8 U.S.C. § 1229a, a noncitizen subject to
reinstatement of a removal order under § 1231(a)(5) is
entitled neither to a regular hearing before, nor to a decision
by, an IJ. See Morales-Izquierdo v. Gonzales, 486 F.3d 484(9th Cir. 2007) (en banc). Instead, a reinstatement order is
entered after a summary proceeding before an immigration
officer. A noncitizen whose prior order of removal is
reinstated is thereafter ineligible for most forms of relief from
removal, including asylum and inadmissibility waivers. See
8 C.F.R. § 241.8; Perez-Guzman v. Lynch, 835 F.3d 1066 (9th
Cir. 2016). Tomczyk states in his briefing that, were he
placed in ordinary removal proceedings under § 1229a, he
would seek relief from removal to allow him to care for his
severely disabled spouse, a United States citizen to whom he
has been married for nearly thirty years.
TOMCZYK V. WILKINSON 9
Given the severe consequences of a reinstatement order,
and the fact that the order is entered following a summary
proceeding by an immigration officer, we upheld the legality
of reinstatement under § 1231(a)(5) because the officer is
required to make no more than a “narrow and mechanical
determination[].” Morales-Izquierdo (en banc), 486 F.3d
at 496. We wrote in Morales-Izquierdo that while the issues
presented in ordinary removal proceedings under 8 U.S.C.
§ 1229a are “often complex and fact-intensive,” “[t]he scope
of a reinstatement inquiry under [§ 1231(a)(5)] is much
narrower.” Id. at 491. The narrow question whether a
noncitizen has “reentered the United States illegally” within
the meaning of 8 U.S.C. § 1231(a)(5), and therefore may
properly be subject to a reinstatement order, is a question that
“can be performed like any other ministerial enforcement
action.” Id.Tomczyk reentered the United States sometime in July
1991. The question before us is whether he “reentered the
United States illegally” within the meaning of § 1231(a)(5),
and is therefore subject to removal pursuant to a
reinstatement order entered after a summary proceeding
before an immigration officer. For the reasons that follow,
we hold that illegal reentry under § 1231(a)(5) requires more
than mere status of inadmissibility. Accord Ponta-Garca v.
Ashcroft, 386 F.3d 341, 343 (1st Cir. 2004) (reentering
noncitizen not subject to a reinstatement order under
§ 1231(a)(5) based solely on inadmissibility (dictum):
“[Petitioner] also contends that he did not reenter the country
illegally but, rather, was inspected and allowed entry. If . . .
[this] assertion is correct, the reinstatement provision would
appear to be inapplicable by its express terms.”).
10 TOMCZYK V. WILKINSON
As a preliminary matter, we note briefly the history
behind § 1231(a)(5). When Tomczyk was deported in 1990,
an IJ was authorized to reinstate a noncitizen’s prior
deportation order after reentry by the noncitizen.
Reinstatement was keyed to the ground for the underlying
deportation, and the category of noncitizens subject to
reinstatement was small. See 8 U.S.C. § 1252(f) (1988)
(permitting reinstatement of a deportation order only if that
order had been based on a ground mentioned in subsection
(e)); id. § 1252(e) (cross-referencing certain grounds for
deportation, which were found in § 1251(a)). Thus, for
example, an IJ could reinstate a prior deportation order for a
noncitizen who had previously been deported based on a prior
conviction for an aggravated felony or for a controlled
substance offense. See id. §§ 1252(e), 1251(a)(4), (a)(11).
However, the IJ could not reinstate a deportation order for a
noncitizen who had previously been deported merely for
being inadmissible at the time of entry, or for having entered
without inspection. See id. §§ 1252(e), 1251(a)(1), (a)(2).
A noncitizen subject to a reinstatement order in 1990 was
provided significant procedural protections. A reinstatement
order could be entered only by an IJ, and only after a hearing
in which the alien was entitled to bring counsel, to present
evidence, and to cross examine witnesses. See Castro-Cortez
v. INS, 239 F.3d 1037, 1048 (9th Cir. 2001) (citing 8 C.F.R.
§ 242.23 (repealed 1997)), abrogated on other grounds by
Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). See,
e.g., Burr v. INS, 350 F.2d 87, 88–89 (9th Cir. 1965) (noting
that the IJ reinstated the petitioner’s deportation order under
§ 1252(f), after a hearing at which the IJ found that petitioner
had previously been deported based on conviction of a crime
involving moral turpitude).
TOMCZYK V. WILKINSON 11
As part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208,
110 Stat. 3009-546, Congress changed the law with respect to
reinstatement orders, replacing the provision that had been in
effect when Tomczyk was deported. The new law
streamlined removal procedures, reflecting Congress’s view
that some of the previously required procedures had led to
unnecessary delay and expense. See, e.g., H.R. Rep. No. 104-
469(I), at 107 (1996) (“Existing procedures to deny entry to
and to remove illegal aliens from the United States are
cumbersome and duplicative.”); S. Rep. 104-249, at 7 (1996)
(“Aliens who violate U.S. immigration law should be
removed from this country as soon as possible.”).
IIRIRA, which both parties agree governs Tomczyk’s
petition, has changed reinstatement orders in two relevant
respects. First, a reinstatement order is no longer keyed to the
ground for the prior removal. The new criterion for entry of
a reinstatement order is that the noncitizen have “reentered
the United States illegally.” 8 U.S.C. § 1231(a)(5). IIRIRA
does not define “reenter[ing] . . . illegally.” Second,
protections for a noncitizen subject to a reinstatement order
have been greatly reduced. See 8 C.F.R. § 241.8. The
decision whether to reinstate a prior deportation or removal
order is now made by a lay immigration officer rather than by
a legally trained IJ. The officer’s decision is made after a
summary proceeding in which the noncitizen has no right to
counsel, has no right to present evidence other than his or her
own statement, and no right to cross examine witnesses. See
id.We addressed the meaning of “reenter[ing] . . . illegally”
under § 1231(a)(5) in Tamayo-Tamayo. The petitioner in
Tamayo-Tamayo had been deported twice before the reentry
12 TOMCZYK V. WILKINSON
at issue. He arrived at a port of entry and used an invalid
alien registration card to “dupe” an immigration officer into
admitting him to the United States. Tamayo-Tamayo,
725 F.3d at 951–52. Focusing on the manner of his reentry,
we held that Tamayo-Tamayo was properly subject to
reinstatement of his prior order of removal. We rejected his
contention that because his reentry was (in his view)
“procedurally regular,” it was a legal reentry within the
meaning of § 1231(a)(5). Id. at 952. We concluded that his
reentry was “substantively illegal,” emphasizing that “he
tricked the border official into allowing him physically to
enter.” Id. at 953.
We have applied Tamayo-Tamayo’s holding in only one
subsequent published opinion. In Tellez v. Lynch, 839 F.3d
1175, 1179 (9th Cir. 2016), we held that a noncitizen who
“lacked valid documentation and intended to dupe border
officials into letting her enter” reentered illegally within the
meaning of § 1231(a)(5). Tellez had been removed from the
United States and had been forbidden to return within the
next five years without prior consent from the Attorney
General. Id. at 1177. Tellez returned to the United States
only a week after she had been deported and was waved
through by immigration officers. As in Tamayo-Tamayo, our
conclusion rested on the petitioner’s fraudulent conduct.
“Nothing in the statute or elsewhere suggests that Congress
intended that the reinstatement provision would not apply to
aliens who were able to dupe border officials into thinking
that they had authorization to enter, or that Congress
otherwise intended to reward fraudulent behavior.”
Tamayo-Tamayo, 725 F.3d at 952.
TOMCZYK V. WILKINSON 13
The government does not argue that Tomczyk “duped” an
immigration officer or used fraudulent documentation to
reenter the United States in 1991. When Tomczyk reentered
in 1991, Canadian citizens were not required to have a visa or
even a passport to enter the United States at the Canadian
border. See 8 C.F.R. § 212.1(a) (1991). Tomczyk represents
in his brief that he told the immigration officer at the border
when he reentered with friends in July 1991 that he and his
friends were coming to the United States “for beers.” The
immigration officer then waved Tomczyk and his friends
through. Assuming the truth of this representation,
Tomczyk’s case is fundamentally different from Tamayo-
Tamayo and Tellez, where we allowed reinstatement of prior
deportation orders for noncitizens who had reentered the
United States through fraud.
The government asks us to ignore this difference and to
read Tamayo-Tamayo and Tellez more broadly than their facts
support. In the government’s view, any time a previously
removed noncitizen is unable to demonstrate “that he was
eligible for admission at the time of his reentry,” the reentry
was “illegal” within the meaning of § 1231(a)(5), and an
immigration officer may reinstate the prior order of removal
after a summary proceeding. The government contends that
a noncitizen “reenter[s] . . . illegally” within the meaning of
§ 1231(a)(5) based on nothing more than the status of the
noncitizen. It seeks to define the act of “reenter[ing] . . .
illegally” as any “reentry while inadmissible,” even for a
reentering noncitizen who applied for admission with honest
intentions, who made truthful statements at a port of entry,
and who was admitted by an immigration officer. We
disagree. As we understand the statute, a noncitizen’s status
of inadmissibility, standing alone, does not mean that the
14 TOMCZYK V. WILKINSON
noncitizen has “reentered . . . illegally” within the meaning of
§ 1231(a)(5).
The government does not argue that its interpretation of
§ 1231(a)(5) in this litigation is entitled to deference under
Chevron and related cases. See Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). We
agree with the government’s tacit admission that it is not
entitled to deference. We do not give Chevron deference to
agency decisions made without “a lawmaking pretense in
mind,” such as those made with little or no procedure and that
“stop short of [binding] third parties.” United States v. Mead
Corp., 533 U.S. 218, 233 (2001). Our cases treat “the
precedential value of an agency action as the essential factor”
in whether to apply Chevron. Marmolejo-Campos v. Holder,
558 F.3d 903, 909 (9th Cir. 2009) (en banc) (emphasis in
original). There is no evidence that the government
developed its interpretation of “reenter[ing] . . . illegally”
with a “lawmaking pretense in mind,” and a reinstatement
order entered by an immigration officer has no precedential
value. The government’s interpretation therefore merits no
deference beyond “those factors which give it power to
persuade.” Id. (quoting Skidmore v. Swift & Co., 323 U.S.
134, 140 (1944)).
Although the INA does not define “reenter[ing] . . .
illegally,” see INA § 101, 8 U.S.C. § 1101, two related
sections of the INA that provide civil and criminal penalties
for certain wrongful entries and reentries provide helpful
guidance. See INA §§ 275–76, 8 U.S.C. §§ 1325–26.
Section 1325 imposes criminal and civil penalties on
noncitizens who enter between designated ports of entry,
elude inspection, or procure admission “by a willfully false or
TOMCZYK V. WILKINSON 15
misleading representation or the willful concealment of a
material fact.” 8 U.S.C. § 1325(a). Section 1325 is
concerned with surreptitious entry and admissions procured
by fraud. Illegal reentry under § 1325 is not established by
the mere fact of inadmissibility.
Section 1326 imposes criminal penalties on those who
reenter the United States in violation of a requirement to
obtain advance consent of the Attorney General. 8 U.S.C.
§ 1326(a)(2). A noncitizen who is removed from the United
States is barred from seeking admission without the Attorney
General’s consent for different periods of time, depending on
the basis for removal. See 8 U.S.C. § 1182(a)(9).
Noncitizens who are removed receive a written warning, on
either Form I-294 or Form I-296, explaining that reentry
during that period without the Attorney General’s permission
will result in criminal penalties under § 1326. An
inadmissible noncitizen who is not subject to an advance
permission requirement or who obtains permission for reentry
does not violate § 1326 by reentering the United States. See
United States v. Mendoza-Lopez, 481 U.S. 828, 830–31 & n.2
(1987). For example, § 1326 would have applied to Tomczyk
if he had reentered without permission within a year of his
deportation on July 2, 1990. However, after that date, the
version of § 1182(a)(16) in effect at the time did not require
him to obtain advance permission to reapply for admission.
As a Canadian citizen, he was not required to have a visa or
a passport to enter the United States at the Canadian border.
As under § 1325, illegal reentry under § 1326 is not
established by the mere fact of inadmissibility.
Both the Supreme Court and Congress have described
§ 1326 as punishing “illegal reentry.” See, e.g., United States
v. Resendiz-Ponce, 549 U.S. 102, 105, 107 (2007) (holding
16 TOMCZYK V. WILKINSON
that “an indictment alleging attempted illegal reentry under
§ 1326(a) need not specifically allege a particular overt act”
where it alleged that a noncitizen “knowingly and
intentionally” attempted to reenter the United States in
violation of a requirement to obtain advance consent of the
Attorney General); IIRIRA § 334, 110 Stat. 3009-546, 3009-
635 (describing change to sentencing under 8 U.S.C.
§ 1326(b) as “enhanced penalties for . . . illegal reentry”).
Many inadmissible noncitizens who enter or reenter the
United States do so without violating § 1325 or § 1326, for
these sections do not punish entries or reentries solely on the
ground of a noncitizen’s inadmissibility. Rather, they punish
entries and reentries based on the manner and circumstances
of the entry. For example, a noncitizen who sneaks across the
border or deceives an immigration officer violates § 1325.
See, e.g., Tamayo-Tamayo, 725 F.3d at 951–52. A noncitizen
who reenters too soon after removal, without waiting for a
prescribed consent period to pass and without obtaining
advance permission, violates § 1326. See, e.g., Tellez,
839 F.3d at 1177. In these cases, an inadmissible
noncitizen’s violation of the immigration laws by illegal
reentry is not based solely on the status of inadmissibility.
Rather, it is based on the manner and circumstances of entry
or reentry.
The INA’s provisions governing relief from removal
bolster our conclusion that the status of inadmissibility,
standing alone, is not “reenter[ing] . . . illegally” within the
meaning of § 1231(a)(5). For example, many inadmissible
noncitizens, including those who have left and then reentered
the United States while inadmissible, are eligible for asylum.
See, e.g., INA § 208, 8 U.S.C. § 1158 (asylum). An asylum
applicant concedes inadmissibility as part of the process of
TOMCZYK V. WILKINSON 17
applying for asylum. Indeed, it is the very fact of
inadmissibility that prompts the noncitizen refugee to apply
for asylum.
Almost all forms of relief from removal, including
asylum, are unavailable after reinstatement of a prior removal
order. See Perez-Guzman, 835 F.3d at 1072. Were we to
hold that reinstatement of a prior removal order is proper
based solely on inadmissibility of a noncitizen at the time of
reentry, we would create an odd result: a previously removed
inadmissible noncitizen who applies for admission at a port
of entry without yet entering would receive greater protection
than a previously removed inadmissible noncitizen who
arrives at a port of entry, makes truthful statements to an
immigration officer, and is waved in by the immigration
officer. For example, a previously removed inadmissible
noncitizen who remains on the Canadian side of the border
while asking for asylum would be eligible to apply. But as
soon as an immigration officer waves the asylum-seeking
inadmissible noncitizen across the border, asylum would be
unavailable.
Further, reinstatement of prior removal orders based
solely on inadmissibility at the time of reentry would pose
severe practical difficulties. In many instances,
inadmissibility at the time of reentry is not apparent based on
the prior order of removal. In such cases, an immigration
officer will have great difficulty in determining
inadmissibility at the time of reentry, particularly if the
reentry, as in Tomczyk’s case, was several decades earlier.
There are many grounds for inadmissibility. To give only a
few of the many grounds listed in 8 U.S.C. § 1182:
noncitizens are inadmissible if they have “a communicable
disease of public significance” at the time of entry,
18 TOMCZYK V. WILKINSON
§ 1182(a)(1)(A)(i); if they are “drug abuser[s] or addict[s]” at
the time of entry, § 1182(a)(1)(A)(iv); if they come to the
United States to engage in prostitution, § 1182(a)(2)(D); if the
Attorney General has reasonable ground to believe, at the
time of entry, that they are entering to engage in terrorist
activity, and their spouse and children are similarly
inadmissible unless they should not reasonably have known
of that activity, § 1182(a)(3)(B)(i)(II), (B)(i)(IX), (B)(ii)(I);
if the Secretary of State has reasonable ground to believe, at
the time of the entry, that their admission would cause
adverse foreign policy consequences, § 1182(a)(3)(C)(i); if
they are members of a totalitarian party, such as the
Communist Party, § 1182(a)(3)(D)(i); if they are likely to
become “public charge[s],” § 1182(a)(4)(A). All of these,
and many more, are grounds of inadmissibility. Under the
government’s view of § 1231(a)(5), an immigration officer is
expected to reinstate prior removal orders based on
inadmissibility at the time of reentry on any of these grounds,
even for reentries that took place many years earlier. We
think it is extremely unlikely that Congress intended
immigration officers, in summary proceedings, to determine
inadmissibility and enter reinstatement orders in such cases.
The DHS regulation governing reinstatement orders
reinforces our understanding of § 1231(a)(5). The regulation
strongly suggests that the manner and circumstances of an
inadmissible noncitizen’s reentry, rather than inadmissibility
alone, is the determinative factor. See 8 C.F.R. § 241.8. The
regulation provides that in determining whether a noncitizen
“reenter[s] . . . illegally” for purposes of § 1231(a)(5), “the
officer shall consider all relevant evidence, including
statements made by the alien and any evidence in the alien’s
possession. The immigration officer shall attempt to verify
an alien’s claim, if any, that he or she was lawfully admitted,
TOMCZYK V. WILKINSON 19
which shall include a check of Service data systems available
to the officer.” 8 C.F.R. § 241.8(a)(3). The evidence thus
described in the regulation allows an immigration officer to
assess the manner and circumstances of the noncitizen’s
reentry, and therefore whether the noncitizen entered without
permission or inspection or procured admission by fraud.
However, as just noted, many of the possible grounds of
inadmissibility involve relatively complex determinations that
cannot be made using the limited evidence described in the
regulation.
When we held en banc in Morales-Izquierdo that entry of
reinstatement orders by immigration officers satisfies due
process, we relied heavily on the fact that § 1231(a)(5) and its
implementing regulation, 8 C.F.R. § 241.8(a)(3), call for a
relatively simple assessment of the manner and circumstances
of the noncitizen’s reentry. See 486 F.3d at 495–96. We held
that the risk of an erroneous reinstatement determination was
“extremely low” because the regulation requires only a
“narrow and mechanical determination[]” by the immigration
officer. Id. at 496. Were we to accept the government’s
position that the availability of a reinstatement order depends
solely on a noncitizen’s admissibility at the time of reentry,
rather than the manner and circumstances of reentry, our basis
for upholding § 1231(a)(5) in Morales-Izquierdo would
disappear. We are bound by our view, as expressed in that
case, that reinstatement requires only a simple, ministerial
determination by an immigration officer.
We therefore hold that a noncitizen has not “reentered the
United States illegally” within the meaning of § 1231(a)(5)
based solely on the fact of inadmissibility at the time of
reentry. Rather, the act of “reenter[ing] . . . illegally” under
§ 1231(a)(5) requires some form of misconduct by the
20 TOMCZYK V. WILKINSON
noncitizen—such as entering without inspection, entering in
violation of a requirement to obtain advance consent from the
Attorney General, or procuring admission by fraud—rather
than merely the status of inadmissibility. We conclude that
this interpretation of § 1231(a)(5) best comports with the
structure of the INA, with the regulations governing
reinstatement of removal orders, and with our reasoning in
Morales-Izquierdo and Tamayo-Tamayo. We therefore grant
the petition and remand for application of the correct legal
standard under § 1231(a)(5).
On remand, DHS may determine that Tomczyk is not
subject to reinstatement of his prior deportation order under
this standard and should be placed in regular removal
proceedings before an IJ under § 1229a. Alternatively, DHS
may determine on a more developed factual record that
Tomczyk reentered without inspection, reentered within one
year of June 2, 1990 without prior permission of the Attorney
General, or procured admission by fraud. In the posture of
this case, we decline to address Tomczyk’s remaining
arguments that reinstatement under § 1231(a)(5) would
violate his substantive and procedural due process rights.
Conclusion
Because we conclude that DHS applied the wrong legal
standard for reinstatement of a prior order of removal under
§ 1231(a)(5), we grant the petition and remand for further
proceedings consistent with this opinion.
PETITION GRANTED and REMANDED.
TOMCZYK V. WILKINSON 21
BYBEE, Circuit Judge, dissenting:
Gary Tomczyk is a Canadian citizen. He was deported
from the United States in 1990 under a final order of
exclusion and deportation. Roughly one year later, in July
1991, he reentered the United States at a port-of-entry in
Washington—ostensibly to get beer—and settled here. In
2016, the Department of Homeland Security (DHS) ordered
his 1990 deportation order reinstated. Tomczyk now
petitions for review of his reinstatement order.
The majority grants Tomczyk’s petition for review on the
basis that DHS applied the incorrect legal standard in
determining whether Tomczyk “illegally reentered” the
United States under 8 U.S.C. § 1231(a)(5). Maj. Op.
at 19–20. But DHS did not do so. Tomczyk was
inadmissible when he entered the United States in 1990
because he had a conviction in Canada for trafficking in a
controlled substance. His status—inadmissible—did not
change between 1990 and 1991 when he reentered, and for
that reason his prior deportation order may be reinstated.1
The majority’s opinion is inconsistent with our decisions in
Tamayo-Tamayo v. Holder, 725 F.3d 950 (9th Cir. 2013), and
Tellez v. Lynch, 839 F.3d 1175 (9th Cir. 2016), and creates a
circuit conflict. Our law is clear: even if Tomcyzk’s reentry
into the United States was “procedurally regular,” it remained
“substantively illegal,” and he is subject to reinstatement of
his prior order of deportation. Tamayo-Tamayo, 725 F.3d
1The majority points out that Tomczyk’s brief states that he received
a full and unconditional pardon for his offenses and the convictions were
expunged. Maj. Op. at 6. However, Tomczyk does not indicate when this
pardon and expungement took place, nor does he offer any argument over
its effect on U.S. immigration law.
22 TOMCZYK V. WILKINSON
at 953 (emphasis added). I would deny Tomczyk’s petition
for review of his reinstatement order.
I. IMMIGRATION AND NATIONALITY ACT
Tomcyzk’s petition is governed by 8 U.S.C. § 1231(a)(5).
See Ixcot v. Holder, 646 F.3d 1202, 1213 (9th Cir. 2011);
Maj. Op. at 11. However, because the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
substantially amended the Immigration and Nationality Act
(INA) between Tomcyzk’s 1991 reentry and the 2016
reinstatement of the 1990 deportation order, it will be useful
to trace the INA as codified at the time of Tomczyk’s 1990
exclusion and 1991 reentry to the INA as currently codified.
A. The Immigration and Nationality Act as Codified in 1988
Tomczyk’s 1990 exclusion proceedings were held under
8 U.S.C. § 1226 (1988).2 Section 1226 provided for
proceedings where a “special inquiry officer” “shall have
authority in any case to determine whether an arriving alien
who has been detained for further inquiry . . . shall be allowed
to enter or shall be excluded and deported.” 8 U.S.C.
§ 1226(a) (1988). The officer’s determination “shall be based
only on the evidence produced at the inquiry.” Id. The
statute also granted a right to appeal the order “to the
Attorney General.” Id. § 1226(b). The decision of the special
inquiry officer “shall be final unless reversed on appeal to the
Attorney General.” Id. § 1226(c).
2
The effective version of the INA at the time of both Tomczyk’s
1990 deportation and 1991 reentry was codified in the 1988 United States
Code. For clarity, I will refer to the INA by its codified section number
in the United States Code.
TOMCZYK V. WILKINSON 23
At the time of Tomczyk’s 1990 exclusion and his 1991
reentry, 8 U.S.C. § 1182 set out the categories of excludable
aliens. See id. § 1182(a) (1988). In the 1990 order of
exclusion and deportation, the immigration judge3 (IJ)
ordered Tomczyk excluded pursuant to 8 U.S.C.
§§ 1182(a)(20), (23) (1988). These provisions provided for
the exclusion of (1) aliens without valid entry documents, see
id. § 1182(a)(20),4 and (2) aliens convicted of certain drug
violations, including possession of marijuana, see id.
§ 1182(a)(23).5 Thus, Tomczyk was excluded in 1990
3
Referred to by statute as the “special inquiry officer,” see 8 U.S.C.
§ 1226(a) (1988). See also 8 C.F.R. § 1.1(l) (1991) (“The term
immigration judge means special inquiry officer . . . .”).
4
In full, § 1182(a)(20) (1988) provides:
Except as otherwise specifically provided in this
chapter, any immigrant who at the time of application
for admission is not in possession of a valid unexpired
immigrant visa, reentry permit, border crossing
identification card, or other valid entry document
required by this chapter, and a valid unexpired passport,
or other suitable travel document, or document of
identity and nationality, if such document is required
under the regulations issued by the Attorney General
pursuant to section 1181(a) of this title.
5
In full, § 1182(a)(23) (1988) provides:
Any alien who has been convicted of a violation of, or
a conspiracy to violate, any law or regulation relating to
the illicit possession of or traffic in narcotic drugs or
marihuana, or who has been convicted of a violation of,
or a conspiracy to violate, any law or regulation or
controlling the taxing, manufacture, production,
compounding, transportation, sale, exchange,
dispensing, giving away, importation, exportation, or
24 TOMCZYK V. WILKINSON
because he lacked valid entry documents and had prior
Canadian convictions for a controlled substance violation.
Under §§ 1182(a)(16), 1326(a) (1988), aliens seeking
admission within a year of being excluded from the United
States must have the permission of the Attorney General, or
they face not just immigration consequences, but criminal
sanctions.6 When Tomczyk was deported in 1990, he was
the possession for the purpose of the manufacture,
production, compounding, transportation, sale,
exchange, dispensing, giving away, importation, or
exportation of opium, coca leaves, heroin, marihuana,
or any salt derivative, or preparation of opium of coca
leaves, or insonipecaine or any addiction-forming or
addiction-sustaining opiate; or any alien who the
consular officer or immigration officer know or have
reason to believe is or has been an illicit trafficker in
any of the aforementioned drugs. . . .
6
Section 1182(a)(16) (1988) permits exclusion of aliens who were
previously “excluded from admission and deported and who again seek
admission within one year from the date of such deportation” unless “the
Attorney General has consented to their reapplying for admission”
beforehand.
Section 1326(a) (1988) provides:
[A]ny alien who–
(1) has been . . . excluded and deported, and
thereafter
(2) enters, attempts to enter, or is at any time found
in, the United States, unless (A) prior to his
reembarkation at a place outside the United States
or his application for admission from foreign
contiguous territory, the Attorney General has
expressly consented to such alien’s reapplying for
admission; or (B) . . . such alien shall establish that
TOMCZYK V. WILKINSON 25
issued a warning that was consistent with § 1182(a)(16). The
warning stated,
An immigration judge has ordered that
you be excluded from admission into the
United States, and that you be deported from
the United States.
If after your deportation is effected, you
desire to reenter the United States within one
year from the date of such deportation, you
must, prior to commencing your travel to this
country, request permission from the Attorney
General to reapply for admission into the
United States. Application forms for
requesting such permission may be obtained
by contacting any United States Consulate or
office of the United States Immigration and
Naturalization Service.
Your reentry within one year of the date of
your deportation without the express
permission of the Attorney General will
subject you to prosecution as a felon and, if
convicted therefor, you could be sentenced to
imprisonment for not more than two years or
fined not more than $1000, or both.
he was not required to obtain such advance such
advance consent under this chapter or any prior
Act,
shall be guilty of a felony, and upon conviction thereof,
be punished by imprisonment of not more than two
years, or by a fine of not more than $1,000, or both.
26 TOMCZYK V. WILKINSON
The generic warning issued to Tomczyk was consistent with
this additional ground of excludability in § 1182(a)(16).
However, the warning did not advise Tomczyk that he was
free to reenter the United States after one year. Rather, it
advised him that the was subject to criminal prosecution if he
reentered the United States within a year and without the
Attorney General’s permission, consistent with § 1326(a).
Tomczyk remained excludable under § 1182(a)(23) for the
reason for which he had been deported—he had a controlled
substance conviction. Nothing in the notice advised him that
he would become eligible for admission after a year.
At the time of Tomczyk’s deportation and reentry, the
INA also authorized the reinstatement of certain prior orders
of deportation against any alien that “unlawfully reentered the
United States after having previously departed or been
deported pursuant to an order of deportation.” 8 U.S.C.
§ 1252(f) (1988).7 Deportation orders would be reinstated if
the order was issued on specified grounds, including that the
alien had at anytime been convicted of a controlled substance
7
In full, § 1252(f) (1988) provides:
Should the Attorney General find that any alien has
unlawfully reentered the United States after having
previously departed or been deported pursuant to an
order of deportation, whether before or after June 27,
1952, on any ground described in any of the paragraphs
in subsection (e) of this section, the previous order of
deportation shall be deemed to be reinstated from its
original date and such alien shall be deported under
such previous order at any time subsequent to such
reentry. For the purposes of subsection (e) of this
section the date on which the finding is made that such
reinstatement is appropriate shall be deemed the date of
the final order of deportation.
TOMCZYK V. WILKINSON 27
offense. See id. §§ 1251(a)(11), 1252(e), (f). Thus, at the
time of his reentry in 1991, Tomczyk would have been
subject to reinstatement of his 1990 deportation order under
§ 1252(f) if he “unlawfully reentered the United States.”
B. The Current INA, as Amended by The Illegal Immigration
Reform and Immigration Responsibility Act of 1996
The current INA, as amended by IIRIRA, now authorizes
several types of removal proceedings and procedures, many
of which were intended to streamline the immigration system
and reduce judicial oversight. One such procedure is
reinstated removal under 8 U.S.C. § 1231(a)(5). Section
1231(a)(5) 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.
Thus, the new reinstatement provision allowed for any prior
order of removal to be reinstated, and exchanged the term
“illegal” for the prior term “unlawful.” Compare 8 U.S.C.
§ 1252(f) (1988) with 8 U.S.C. § 1231(a)(5) (2018).
The amendments also modified the “excludable” alien
provisions. The current version of the INA makes aliens
“inadmissible” rather than “excludable.” See 8 U.S.C.
28 TOMCZYK V. WILKINSON
§ 1182(a) (2018). The various categories were reorganized
and some language was modified. However, aliens without
valid entry documents, see id. § 1182(a)(7), aliens with
controlled substance convictions, see id.
§§ 1182(a)(2)(A)(i)(II), (C)(i), and previously removed aliens
who do not seek and receive the Attorney General’s consent
before seeking admission within certain time periods, see id.
§ 1182(a)(9),8 continue to be inadmissible under the current
version of the INA. Thus, the grounds under which Tomczyk
was excluded in 1990 remain valid grounds for
inadmissibility today.
II. REINSTATEMENT
As I have noted, the INA provides for the reinstatement
of a prior order of removal when a previously excluded alien
“has reentered the United States illegally.” 8 U.S.C.
§ 1231(a)(5). Like the majority, I recognize “[t]he
consequences of reinstatement for a noncitizen are profound,”
Maj. Op. at 8, because a noncitizen subject to reinstatement
of a removal order under § 1231(a)(5) is not entitled to a
hearing before an IJ. Reinstatement orders are entered by
DHS officers and require no further administrative or judicial
process before immediate removal. 8 C.F.R. § 241.8(a). An
8
The term of inadmissibility varies based upon the type of prior
removal. See 8 U.S.C. § 1182(a)(9)(A)(i) (2018) (aliens removed upon
arrival under § 1225(b)(1) or at the end of § 1229a proceedings and who
seek admission within five years of removal are inadmissible); id.
§ 1182(a)(9)(A)(ii) (aliens not covered by (A)(i) who have previously
been ordered removed under § 1229a or any other provision of law and
seek admission within ten years of departure or removal are inadmissible).
There continues to be an exception for aliens who have secured the
Attorney General’s consent to the their reapplication for admission. Id.
§ 1182(a)(9)(A)(iii).
TOMCZYK V. WILKINSON 29
alien who has had an order reinstated is thereafter ineligible
for most forms of relief from removal, including asylum and
inadmissibility waivers. See 8 C.F.R. § 241.8; Perez-Guzman
v. Lynch, 835 F.3d 1066, 1082 (9th Cir. 2016).
Tomczyk argues that because he did not “illegally
reenter” the United States in 1991, he is entitled to ordinary
removal proceedings under § 1229a, where he will seek relief
from removal to allow him to care for his severely disabled
wife, a United States citizen to whom he has been married for
nearly thirty years. Thus, the central question is what
constitutes an “illegal reentry” under § 1231(a)(5).
A. Illegal Reentry Under Section 1231(a)(5)
The majority holds that an “illegal reentry” under
§ 1231(a)(5) requires some additional act beyond the mere
fact of reentry while “inadmissible” under § 1182. Maj. Op.
at 19–20. The majority ultimately ties the language in
§ 1231(a)(5) to the criminal statutes governing reentry. Maj.
Op. at 14–16. I disagree with the majority’s reading of the
statute and of our cases, and would hold that an alien who
reenters the United States while inadmissible under § 1182
commits an “illegal reentry” for the purpose of § 1231(a)(5).
In my view, § 1231(a)(5) is a status offense and does not
require the government to prove some corrupt act in addition
to the alien’s inadmissible status. My conclusion is borne out
in our cases.
In Tamayo-Tamayo v. Holder, the petitioner had been
removed twice before the reentry at issue. 725 F.3d 950, 951
(9th Cir. 2013). Tamayo reentered the United States by
presenting his pre-1989 (but invalid) permanent resident card
to the border official. Id. at 951–52. The official permitted
30 TOMCZYK V. WILKINSON
Tamayo to enter. Id. at 952. Sometime after his reentry,
Tamayo filed an application to replace his permanent resident
card, and the government realized Tamayo “had no legal
authority to be in the country.” Id. The government then
reinstated the prior order of removal. Id.We denied Tamayo’s petition for review. We held that
“[t]he plain text of the statutory provision was met with
respect to the 1989 removal order: The Attorney General
found that Petitioner had reentered illegally. . . .” Id. In
evaluating the Attorney General’s determination that the
petitioner had reentered illegally, we stated that “[w]hen [the
p]etitioner reentered the country after his 1993 removal, he
lacked valid documentation that permitted him to enter.
Accordingly, he was inadmissible under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I), as an alien ‘who is not in possession of
a valid unexpired [authorization document],’ and his entry
was illegal.”9 Id. (alterations in original). Although we
commented on Tamayo’s “deceptive behavior,” we did so in
determining that the purported “procedural regularity” of the
reentry could not override the fact that the entry was
“substantively illegal.” See id. at 952–54. We determined
that petitioner’s “deceptive behavior did not render his entry
legal.” Id. at 952.10
We followed Tamayo-Tamayo in Tellez v. Lynch,
839 F.3d 1175 (9th Cir. 2016). In Tellez, the petitioner was
9
We applied the current version of the INA in Tamayo-Tamayo.
10
Although the INA makes aliens who procure admission to the
United States through “fraud or willful[] misrepresent[ation] [of] a
material fact” inadmissible, see 8 U.S.C. § 1182(a)(6)(C) (2018) (prior
version found at § 1182(a)(19) (1988)), we did not rely on this ground.
TOMCZYK V. WILKINSON 31
initially removed for a lack of valid entry documents.
839 F.3d at 1177. She then signed a statement
acknowledging that she could not return to the United States
for five years. Id. She returned to the United States the
following week, without valid entry documents, but “dressed
up in a nice pretty dress” and “smiled at the immigration
officer” from the passenger seat of a car.” Id. The officer
waved the car through. Id. She later applied for an
inadmissibility waiver and adjustment of status. Id. DHS
then reinstated the prior expedited removal order on the
grounds that petitioner reentered illegally under § 1231(a)(5).
Id. As we noted in Tellez, a “successful entry can still be an
illegal entry.” Id. at 1178. We referred to Tamayo-Tamayo
as “holding on similar facts that an entry was illegal because
petitioner ‘lacked valid documentation that permitted him to
enter.’” Id. at 1178–79. In finding the reentry “illegal,” Tellez
held that there was “no question that Tellez lacked valid
documentation” and that “[a] pretty dress and charming smile
are not substitutes for a visa.” Id. at 1179 (emphasis added).
Taken together, these cases indicate that it is the aliens’
inadmissibility under substantive law, 8 U.S.C. § 1182, that
makes their reentry “illegal” under § 1231(a)(5).
The majority’s holding not only is inconsistent with our
cases, but it creates a circuit split with a decision from the
Tenth Circuit, one we relied on in Tamayo-Tamayo. See
725 F.3d at 953 (citing, inter alia, Cordova-Soto v. Holder,
659 F.3d 1029, 1031–35 (10th Cir. 2011)).11 In Cordova-
11
The majority cites the First Circuit’s decision in Ponta-Garcia v.
Ashcroft, 386 F.3d 341 (1st Cir. 2004), but notes that the statement it is
quoting is dicta. Maj. Op. at 9. In Ponta-Garcia, the First Circuit
dismissed the appeal on the government’s motion for lack of jurisdiction.
Ponta-Garcia, 386 F.3d at 343. The language quoted by the majority is
32 TOMCZYK V. WILKINSON
Soto, the petitioner was initially removed on the basis of
multiple grounds. 659 F.3d at 1030. Cordova-Soto stipulated
to removal. Id. As part of the stipulation, she acknowledged
(1) her need to reapply for admission; (2) that she may not be
eligible for admission in the future, and (3) that she could not
legally return for at least 10 years without special permission
of the AG, and (4) if convicted of an aggravated felony, she
could not return at any time without special permission from
the Attorney General. See id. Cordova-Soto reentered the
United States less than one month after her removal and had
not applied to the Attorney General for permission to enter.
Id. at 1031. Cordova-Soto asserted that because her entry
was “procedurally regular, she did not reenter the United
States illegally.” Id. at 1032. Relying on its prior opinion in
Lorenzo v. Mukasey, 508 F.3d 1278, 1282–83 (10th Cir.
2007), the Tenth Circuit held that “petitioner’s allegations
failed to establish that she entered the country legally because
she was inadmissible at that time.” Cordova-Soto, 659 F.3d
at 1032 (citing Lorenzo, 508 F.3d at 1282–83). Thus, in
Cordova-Soto, the “reentry less than a month after her
removal was illegal because she was inadmissible under
§ 1182(a)(9)(A)(ii).” 659 F.3d at 1033.
The Tenth Circuit also addressed whether a procedurally
regular entry could convert an otherwise illegal reentry into
a lawful entry. See id. The court concluded that it was not
persuaded by Cordova-Soto’s argument that “the language
the purest dicta, as the court admitted. Id. (“We add a coda.”). The
“coda” then refers to facts not verified and is unsupported by statutes,
regulations, or case law. Given our contrary holdings in Tamayo-Tamayo
and Tellez, and the Tenth Circuit’s contrary holding in Cordova-Soto, the
First Circuit’s “coda” is thin support, even for a citation preceded by
“Accord.”
TOMCZYK V. WILKINSON 33
‘reentered the United States illegally’ in § 1231(a)(5) does
not mean a reentry in violation of substantive law.” Id.
at 1034. As we did in Tamayo-Tamayo, the Tenth Circuit
rejected this argument and concluded that “reentered the
United States illegally” means a reentry in violation of
substantive law, including § 1182, regardless of whether the
alien’s entry was procedurally regular. See id. at 1035.
The majority effectively introduces a mens rea element
into the definition of illegal re-entry. See Maj. Op. at 13
(“The government does not argue that Tomczyk ‘duped’ an
immigration officer or used fraudulent documentation to
reenter the United States in 1991.”). Such an element might
be relevant to criminal violations of our immigration laws,
but Tomczyk has not been charged with a crime. And just
because Tomczyk didn’t affirmatively defraud officers at the
port-of-entry doesn’t mean that he could lawfully enter the
United States.12 The majority’s introduction of a fraud
element is contrary to our conclusion in Tamayo-Tamayo:
“nothing suggests that Congress intended the procedural
definition to apply to the phrase ‘reentered the United States
illegally’ in § 1231(a)(5).” 725 F.3d at 953 (emphasis
added). It is also contrary to our statement in Tellez that a
“successful entry can still be an illegal entry.” 839 F.3d at
1178. As we stated in Tamayo-Tamayo, a “procedurally
regular” entry does not justify a “substantively illegal”
reentry under § 1231(a)(5). 725 F.3d at 953 (emphasis
added). A reentry is substantively illegal when the alien
12
In fact, Tomczyk did misrepresent himself at the border. He told
the officer that he and his friends were coming “for beer” and then stayed
for three decades. The United States might be able to pursue criminal
charges against Tomczyk for entering the United States based on his
“willfully false or misleading representation.” 8 U.S.C. § 1325(a).
34 TOMCZYK V. WILKINSON
reenters while inadmissible, even if the entry was otherwise
“procedurally lawful.”13
The majority points to §§ 1325 and 1326 with the
observation that “[m]any inadmissible noncitizens who enter
or reenter the United States do so without violating” those
provisions. Maj. Op. at 16. That may be true, but it is
irrelevant to this case. Tomczyk has not been charged with
any criminal offense under §§ 1325 and 1326. DHS has only
said that Tomczyk illegally reentered the United States and
was subject to a prior order of removal. Both of those
statements are true and have nothing to do with §§ 1325 or
1326. Moreover, the majority’s claim that those sections are
“not based solely on the status of inadmissibility,” Maj. Op.
at 16, ignores the fact that they are criminal provisions.
Nor does 8 C.F.R. § 241.8 help the majority’s argument.
The majority says “[t]he regulation strongly suggests that the
manner and circumstances of an inadmissible noncitizen’s
reentry, rather than inadmissibility alone, is the determinative
factor.” Maj. Op. at 18. The regulations provides that in
determining whether an alien has “illegally reenter[ed] the
United States after having been removed,” the immigration
officer shall consider “[w]hether the alien unlawfully
reentered the United States.” 8 C.F.R. § 241.8(a)(3). That,
of course, is completely circular. But the regulation then
explains that the officer “shall attempt to verify an alien’s
claim . . . that he or she was lawfully admitted.” Id.13
The majority relies heavily on Morales-Izquierdo v. Gonzales,
486 F.3d 484 (9th Cir. 2007) (en banc) to support its interpretation that
“illegal reentry” requires something more than re-entry while
inadmissible. Maj. Op. at 19–20. But the majority ignores that both
Tamayo-Tamayo and Tellez were decided after Morales-Izquierdo.
TOMCZYK V. WILKINSON 35
“Lawfully admitted” does not mean “waved through a port of
entry” or, as in this case, “waved through a port of entry by
an inattentive border officer who was told that the guys were
just coming for beers and was not told that Tomcyzk had a
prior exclusion and deportation order for a controlled
substance offense.” We have already rejected this argument,
twice. See Tellez, 839 F.3d at 1178–79; Tamayo-Tamayo,
725 F.3d at 953.
The majority places some stock in the fact that “[w]hen
Tomczyk reentered in 1991, Canadian citizens were not
required to have a visa or even a passport to enter the United
States at the Canadian border.” Maj. Op. at 13 (citing
8 C.F.R. § 212.1(a) (1991)). That observation is true. But
those exceptions for Canadian citizens didn’t exempt
Tomczyk from the requirement that he “establish to the
satisfaction of the immigration officer that [he] is not subject
to exclusion under the immigration laws and is entitled . . . to
enter the United States.” 8 C.F.R. § 235.1(d)(1). When he
presented himself at the port-of-entry with his friends,
Tomczyk was not an ordinary Canadian national. Tomczyk,
as he well knew, had been previously deported from the
United States because he had a controlled substance violation.
That put him in a different category of aliens—he continued
to be inadmissible under 8 U.S.C. § 1182(a)(23)
(1988)—who were therefore required to seek a waiver of
their inadmissibility before reentering the United States. See
id. §§ 1182(d)(3)(B) (waiver for temporary admissibility),
1182(h) (waiver of § 1182(a)(23) for admission for
permanent residence). Receipt of one of those waivers would
have given Tomcyzk a “claim . . . that he . . . was lawfully
[admissible],” one that an “immigration officer [should]
attempt to verify.” 8 C.F.R. § 241.8(a)(3). Section
1182(d)(3)(B) (1988) provides:
36 TOMCZYK V. WILKINSON
Except as provided in this subsection, an alien
. . . who is inadmissible under one or more of
the paragraphs enumerated in [§ 1182(a)]
(other than paragraphs (27), (29), and (33)),
but who is in possession of appropriate
documents or is granted a waiver thereof and
is seeking admission, may be admitted into
the United States temporarily as a
nonimmigrant in the discretion of the attorney
general.
Under 8 C.F.R. § 212.4 (1991), “[a]n application for the
exercise of discretion under section 212(d)(3)(B) of the Act
shall be submitted on Form I-192 to the district director in
charge of the applicant’s intended port of entry prior to the
applicant’s arrival in the United States.” (emphasis added).
It further requires that “[w]hen the application is made
because the applicant may be inadmissible due to the
conviction of one or more crimes, the designation of each
crime, the date and place of its commission and of the
conviction thereof, and the sentence or other judgment of the
court shall be stated in the application.” Id. There is no
evidence in the record that Tomczyk made such application
for temporary admission at the time he reentered the United
States. Thus, Tomczyk was inadmissible as a matter of law
when he reentered. That an immigration officer in fact waved
him in does not make him admissible.
B. Estoppel
Tomczyk asserts that the government should be estopped
“from asserting anything other than a lawful entry by
inspection.” Traditionally, estoppel “is available against a
nongovernmental party who has made a knowing false
TOMCZYK V. WILKINSON 37
representation or concealment of material facts to a party
ignorant of the facts, with the intention that the other party
should rely on it, where the other party actually and
detrimentally relies on it.” Mukherjee v. INS, 793 F.2d 1006,
1008 (9th Cir. 1986) (emphasis added). Estoppel against the
government raises a different set of considerations. See
Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 421 (1990)
(“Our own opinions have continued to mention the
possibility, in the course of rejecting estoppel arguments, that
some type of ‘affirmative misconduct’ might give rise to
estoppel against the Government.”). We have said to sustain
a claim of estoppel against the United States, a party must
show that (1) the government engaged in “affirmative
misconduct going beyond mere negligence,” Mukherjee,
793 F.2d at 1008 (quoting Morgan v. Heckler, 779 F.3d 544,
545 (9th Cir. 1985)), and (2) “the government’s wrongful act
will cause a serious injustice, and the public’s interest will not
suffer undue damage by imposition of the liability,” id.at 1008–09 (quoting Morgan, 779 F.2d at 545). Moreover, a
party must claim that some right was lost as a result, because
“estoppel against the government is unavailable where
petitioners have not lost any rights to which they were
entitled.” Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir.
2000).
Tomczyk cannot come close to satisfying these criteria.
He cannot allege that the warning issued to him in 1990 rose
to the level of “affirmative misconduct going beyond mere
negligence.” Mukherjee, 793 F.2d at 1008. The notice
Tomczyk received was correct. It warned him that he was
subject to arrest if he returned to the United States within a
year. It did not purport to give him a comprehensive
overview of U.S. immigration law or tell him under what
circumstances he could return to the United States in the
38 TOMCZYK V. WILKINSON
future; it was a warning about potential criminal liability.
Nor can Tomczyk demonstrate that the officer waving him
through the port of entry was guilty of any misconduct
beyond simple negligence. Tomczyk had no right or
privilege to enter the United States; he has not been deprived
of anything to which he was entitled. Sulit, 213 F.3d at 454.
***
Tomczyk is not admissible to the United States. He knew
that when he reentered in 1991 because he had been deported
as “excludable” when he came in 1990. His status didn’t
improve with time. He knew he was not welcome and came
anyway. DHS has reissued his removal order, as Congress
instructed in 8 U.S.C. § 1231(a)(5). There is no error by DHS
here.
III. DUE PROCESS
Tomczyk also raises due process challenges to the
reinstatement order and the underlying order of removal.
However, Tomczyk has not demonstrated that his right to due
process has been violated. First, with respect to Tomczyk’s
assertion that the reinstatement order violates his right to live
with his family, our court has soundly rejected this theory.
We held in Morales-Izquierdo v. Dep’t of Homeland Sec.,
600 F.3d 1076, 1091 (9th Cir. 2010), overruled in part on
other grounds by Garfias-Rodriguez v. Holder, 702 F.3d 504(9th Cir. 2012) (en banc), that the lawful denial of adjustment
of status does not violate an alien’s or the aliens “family’s
substantive rights protected by the Due Process Clause.” Nor
does the lawful reinstatement of a prior removal order.
Second, the reinstatement of the prior order does not violate
Tomczyk’s right to due process “because reinstatement of a
TOMCZYK V. WILKINSON 39
prior order does not change the alien’s rights or remedies.”
Morales-Izquierdo v. Gonzales, 486 F.3d 484, 497 (9th Cir.
2007) (en banc).
Finally, Tomczyk’s challenge to the validity of his prior
order of removal fails. We have repeatedly held that we lack
jurisdiction to review the order of removal underlying a
reinstatement order, unless the alien can show a “gross
miscarriage of justice.” Garcia de Rincon v. Dep’t of
Homeland Sec., 539 F.3d 1133, 1138 (9th Cir. 2008);
8 U.S.C. § 1231(a)(5) (“the prior order of removal . . . is not
subject to being reopened or reviewed”). Tomczyk cannot
meet this burden. Tomczyk never appealed his initial
deportation order. Moreover, Tomczyk raises no legal
challenge to one of the two provisions under which he was
removed, 8 U.S.C. § 1182(a)(20). Because he has not
challenged that rationale, he cannot show the prejudice
necessary to establish that the initial removal order was a
gross miscarriage of justice. We are therefore without
jurisdiction to review the underlying order.
IV. CONCLUSION
DHS did not apply the incorrect legal standard in
determining whether Tomczyk “illegally reentered the United
States.” Because Tomczyk is (1) an alien, (2) subject to a
prior order of removal, who (3) illegally reentered the United
States in 1991, his prior exclusion order is subject to
reinstatement under 8 U.S.C. § 1231(a)(5). Tomczyk’s
petition should be denied.
I respectfully dissent.