FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GARY TOMCZYK, No. 16-72926 Petitioner, Agency No. v. A029-468-078 ROBERT M. WILKINSON, Acting Attorney General, Respondent. OPINION On Petition for Review of an Order of the Department of Homeland Security Argued and Submitted May 29, 2020 San Francisco, California Filed February 3, 2021 Before: William A. Fletcher, Jay S. Bybee, and Paul J. Watford, Circuit Judges. Opinion by Judge W. Fletcher; Dissent by Judge Bybee 2 TOMCZYK V. WILKINSON SUMMARY* 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 * 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. 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 ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals