Tomczyk v. Wilkinson, No. 16-72926 (9th Cir. 2021)
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The Ninth Circuit granted a petition for review of the DHS's order reinstating petitioner's prior order of removal. Petitioner, a Canadian citizen, was deported from the United States in the summer of 1990 under a final order of deportation. 26 years later, he was taken into custody by ICE after an arrest for driving under the influence of alcohol. DHS then reinstated his prior deportation order under section 241(a)(5) of the Immigration and Nationality Act.
The panel held 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 this case, DHS failed to apply the correct legal standard under section 1231(a)(5) for entering a reinstatement order. The panel explained that petitioner's case is fundamentally different from circuit precedent, where the panel 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 it is not entitled to deference, and the panel did 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." The panel noted that many inadmissible noncitizens who enter or reenter the United States do so without violating sections 1325 or 1326, for these sections do not punish entries or reentries solely on the ground of a noncitizen's inadmissibility. Furthermore, the panel's conclusion was reinforced by the INA's provisions governing relief from removal, the severe practical difficulties of basing reinstatement solely on inadmissibility at the time of reentry, and the DHS regulation governing reinstatement.
Court Description: 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 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.
The court issued a subsequent related opinion or order on July 6, 2021.
The court issued a subsequent related opinion or order on December 14, 2021.
The court issued a subsequent related opinion or order on February 11, 2022.
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