Tomczyk v. Garland

25 F.4th 638

Gary TOMCZYK, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 16-72926

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc September 21, 2021 Pasadena, California

Filed December 14, 2021

Amended February 11, 2022

Xavier Gonzales (argued), Las Vegas, Nevada, for Petitioner.

Walter Manning Evans (argued), Patrick J. Glen, and Bryan S. Beier, Senior Litigation Counsel; John W. Blakeley, Assistant Director; Jesse Lloyd Busen and Craig A. Newell Jr., Attorneys; Brian M. Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Christopher J. Hajec and Gina M. D'Andrea, Immigration Reform Law Institute, Washington, D.C., for Amicus Curiae Immigration Reform Law Institute.

Before: Sidney R. Thomas, M. Margaret McKeown, Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez, Consuelo M. Callahan, Ryan D. Nelson, Eric D. Miller, Kenneth K. Lee, Danielle J. Forrest, and Lawrence VanDyke, Circuit Judges.

Order; Opinion by Judge Callahan

ORDER

The respondent's motion to amend the opinion (Dkt. No. 99) is GRANTED. The Opinion filed on December 14, 2021, is amended as follows:

On slip opinion page 17, lines 6–9, replace < The fact that Tomczyk would not be subject to criminal sanctions if he waited more than one year to reenter did not imply that he would be eligible to be admitted at that point.> with < Whether or not the notice would have affected the applicability of criminal sanctions (a matter not before the Court), it did not address the civil and administrative requirements Tomczyk would have to meet to lawfully re-enter the United States.>

The Clerk shall file the amended opinion submitted with this Order.

AMENDED OPINION

CALLAHAN, Circuit Judge:

The primary question presented in Gary Tomczyk's petition is whether an inadmissible and previously-deported noncitizen who is mistakenly waved into the United States by a border official has illegally reentered the country within the meaning of 8 U.S.C. § 1231(a)(5). Applying the plain language of the statute, we hold that an individual's inadmissible status renders that individual's reentry illegal regardless of the manner of reentry. In doing so, we reaffirm the holdings of two of our prior published opinions, which are in turn consistent with the interpretation of § 1231(a)(5) adopted by the two other circuits to have squarely addressed this issue. Because Tomczyk was a noncitizen subject to a previous removal order who illegally reentered the United States, the Department of Homeland Security ("DHS") did not err in reinstating Tomczyk's removal order.

Tomczyk also asserts that the reinstatement of the removal order violates due process because it interferes with his right to remain in the United States with his wife and because insufficient evidence supported his original removal order. We find that the former argument lacks merit and that we lack jurisdiction to consider the latter. Accordingly, we deny Tomczyk's petition in part and dismiss it in part.

I

Tomczyk is a Canadian citizen. On June 28, 1990, an immigration judge ordered that Tomczyk be "excluded and deported" from the United States under two provisions of a statute in effect at the time, 8 U.S.C. §§ 1182(a)(20), (23) (1988). At that time, § 1182(a)(20) stated that noncitizens who lacked the necessary documents (such as an immigrant visa) "shall be excluded from admission into the United States," while § 1182(a)(23) similarly excluded noncitizens, who like Tomczyk, had certain drug-related convictions or noncitizens whom immigration officials knew or had reason to believe were involved in illicit drug trafficking. 8 U.S.C. §§ 1182(a)(20), (23) (1988). When Tomczyk was deported to Canada on July 2, 1990, he was given a notice stating in relevant part that:

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 imprisonment for not more than two years or fined not more than $1000, or both.

Tomczyk reentered the United States sometime in July 1991 after he and another individual riding in a van were allegedly "waved into the country" by an immigration official at the Canadian border. The record does not indicate the precise date of his reentry, but the government does not contest (at least for purposes of adjudicating this petition) Tomczyk's assertion that more than a year had passed since he had been deported.

More than 25 years later, Tomczyk was arrested in Las Vegas, Nevada, for driving under the influence of alcohol. Immigration and Customs Enforcement officials subsequently took Tomczyk into custody after discovering that Tomczyk had previously been deported and did not have valid immigration documents allowing him to be present in the United States. DHS then reinstated his prior removal order under § 1231(a)(5) on the ground that Tomczyk had illegally reentered the United States after being previously removed.¹

Tomczyk filed this petition for review of the reinstatement order. A divided three-judge panel of this court granted the petition. Tomczyk v. Wilkinson , 987 F.3d 815 (9th Cir. 2021). The majority held that Tomczyk's reentry was not illegal within the meaning of § 1231(a)(5) because he was purportedly waved into the country by a border official, and that "a noncitizen's status of inadmissibility, standing alone," was insufficient to render the reentry illegal. Id. at 822. Instead, the majority stated that "the act of ‘reenter[ing] ... illegally’ under § 1231(a)(5) requires some form of misconduct by the 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." Id. at 825 (alteration and omission in original). The panel remanded for DHS to either place Tomczyk in regular removal proceedings or "determine on a more developed factual record" whether Tomczyk engaged in misconduct sufficient to meet this standard at the time of his reentry. Id. at 826. Judge Bybee dissented on the ground that Tomczyk's inadmissible status alone rendered Tomczyk's reentry unlawful, and that the majority's contrary holding was inconsistent with our prior decisions in Tamayo-Tamayo v. Holder , 725 F.3d 950 (9th Cir. 2013), and Tellez v. Lynch , 839 F.3d 1175 (9th Cir. 2016). Tomczyk , 987 F.3d at 826 (Bybee, J., dissenting). We subsequently voted to rehear the case en banc. Tomczyk v. Garland , 2 F.4th 793 (9th Cir. 2021).

II

The government's ability to reinstate a prior order of removal is governed by § 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.

Id. "[R]einstatement only requires proof that (1) petitioner is an alien, (2) who was subject to a prior removal order, and (3) who illegally reentered the United States." Morales-Izquierdo v. Gonzales , 486 F.3d 484, 495 (9th Cir. 2007) (en banc). These determinations are made by an immigration officer, and a noncitizen who has illegally reentered the country after having previously been removed "has no right to a hearing before an immigration judge in such circumstances." 8 C.F.R. § 241.8(a) ; see also Morales-Izquierdo , 486 F.3d at 495, 497. We review legal questions raised in a petition for review of a reinstatement order de novo and any factual findings for substantial evidence. Ixcot v. Holder , 646 F.3d 1202, 1206 (9th Cir. 2011). Our consideration of the petition is limited to the administrative record and "confirming the agency's compliance with the reinstatement regulations." Garcia de Rincon v. Dep't of Homeland Sec. , 539 F.3d 1133, 1137 (9th Cir. 2008) ; see also 8 U.S.C. § 1252(b)(4)(A).

A

Tomczyk primarily argues that, because a border official allegedly allowed him to enter the United States in July 1991, his reentry was not illegal within the meaning of § 1231(a)(5). "[O]ur inquiry begins with the statutory text, and ends there as well if the text is unambiguous." BedRoc Ltd., LLC v. United States , 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004). Because the Immigration and Nationality Act ("INA") does not define what it means to have "reentered the United States illegally," we look to the language's ordinary meaning. See Lamar, Archer & Cofrin, LLP v. Appling , ––– U.S. ––––, 138 S. Ct. 1752, 1759, 201 L.Ed.2d 102 (2018) ; 8 U.S.C. §§ 1101, 1231.

"To determine ordinary meaning, we consider dictionary definitions." United States v. Cox , 963 F.3d 915, 920 (9th Cir. 2020) ; see also Lamar, Archer & Cofrin, LLP , 138 S. Ct. at 1759. At the time IIRIRA was enacted, Black's Law Dictionary defined "illegal" to mean "[a]gainst or not authorized by law." Illegal , Black's Law Dictionary (6th ed. 1991). The Oxford English Dictionary similarly defined it to mean "[n]ot legal or lawful; contrary to, or forbidden by, law." Illegal , Oxford English Dictionary (2d ed. 1989). Applying this ordinary and commonly understood meaning to § 1231(a)(5), a noncitizen therefore reenters the United States "illegally" when the noncitizen is forbidden by law from gaining admission into the country. See Mendoza v....