FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GARY TOMCZYK, No. 16-72926 Petitioner, Agency No. v. A029-468-078 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted En Banc September 21, 2021 Pasadena, California Filed December 14, 2021 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. Opinion by Judge Callahan 2 TOMCZYK V. GARLAND SUMMARY * Immigration Denying in part and dismissing in part Gary Tomczyk’s petition for review of a Board of Immigration Appeals’ decision, the en banc court held that an individual’s inadmissible status renders that individual’s reentry illegal for purposes of reinstatement of a prior removal order under 8 U.S.C. § 1231(a)(5), regardless of the individual’s manner of reentry. Tomczyk, a citizen of Canada, was deported in July 1990. He reentered in July 1991 after he was waved into the country by an immigration official. More than 25 years later, the Department of Homeland Security (“DHS”) reinstated his prior order under § 1231(a)(5), which only requires proof that (1) petitioner is an alien, (2) who was subject to a prior removal order, and (3) who “reentered the United States illegally.” A divided three-judge panel of this court granted Tomczyk’s petition for review, holding that his reentry was not illegal because he was purportedly waved into the country, and that a noncitizen’s status of inadmissibility, standing alone, was insufficient to render the reentry illegal. The en banc court concluded that DHS did not err in reinstating Tomczyk’s removal order. Observing that the Immigration and Nationality Act does not define the phrase, “reentered the United States illegally,” the en banc court looked to the language’s ordinary meaning. Applying the ordinary and commonly understood meaning of “illegal,” as * 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. GARLAND 3 reflected in dictionary definitions, the en banc court concluded that a noncitizen reenters “illegally” when the noncitizen is forbidden by law from gaining admission into the country. Addressing whether Tomczyk was legally permitted to reenter in July 1991, the en banc court explained that he had been deported in part under a drug-related ground of inadmissibility and there was no indication that he had obtained a waiver of inadmissibility. Nor did Tomczyk cite any authority suggesting that the manner of his reentry effected a waiver. Because the law forbade Tomczyk from gaining admission in July 1991, the en banc court concluded that his reentry while inadmissible was illegal as a matter of law. The en banc court observed that its conclusion is consistent with the court’s precedent, which in turn is consistent with the interpretations of the two other circuits to have addressed this question. Tomczyk next argued that …
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