Tomczyk v. Wilkinson

• Decision Date: 03 February 2021
• Docket Number: No. 16-72926,16-72926
• Citation: 987 F.3d 815
• Parties: Gary TOMCZYK, Petitioner, v. Robert M. WILKINSON, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

987 F.3d 815

Gary TOMCZYK, Petitioner,

v.Robert M. WILKINSON, Acting Attorney General, Respondent.

No. 16-72926

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 29, 2020 San Francisco, California

Filed February 3, 2021

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 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 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.

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.

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.").

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, 126 S.Ct. 2422, 165 L.Ed.2d 323 (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).

As part of the Illegal Immigration Reform and Immigrant Responsibility Act...