Tamayo-Tamayo v. Holder Jr., No. 08-74005 (9th Cir. 2013)Annotate this Case
Petitioner, born in Mexico, petitioned for review of the government's reinstatement of a prior order of removal, following his illegal reentry into the United States after having been removed. The court rejected, as unsupported and as contrary to the text of 8 U.S.C. 1231(a)(5), petitioner's assertion that the 1989 removal order was "superseded" or otherwise invalidated simply because a later removal order existed. The court held that petitioner's substantively illegal reentry met the requirements of section 1231(a)(5) that he had "reentered the United States illegally," notwithstanding the fact that he tricked the border official into allowing him physically to enter. The government's decision to arrest and remove petitioner when he showed up for his interview did not prejudice him. Accordingly, the court need not decide whether there was a due process violation.
Court Description: Immigration. The panel denied Pedro Tamayo-Tamayo’s petition for review of the government’s reinstatement pursuant to 8 U.S.C. § 1231(a)(5) of his prior order of removal, following Tamayo’s illegal reentry into the United States after having been removed. The panel held that Tamayo’s 1993 removal order did not supersede or otherwise invalidate his original 1989 removal order. The panel held that Tamayo’s latest entry, which was procedurally regular but substantively illegal because border officials allowed him to enter based on his invalid alien registration card, met the illegal reentry requirement in § 1231(a)(5). The panel also held that it did not need to decide whether Tamayo’s due process rights were violated when the government arrested and removed him when he showed up for an appointment ostensibly set to discuss his application to replace his permanent resident card, because he was not prejudiced.
The court issued a subsequent related opinion or order on June 18, 2013.