Miguel Mendoza v. Jefferson B. Sessions III
Opinion
*674 In 1995, Miguel Macias Mendoza ("Macias") reentered the United States after having been removed only weeks earlier. When he came to the attention of the government more than twenty years later, a deportation officer for U.S. Immigration and Customs Enforcement ("ICE") determined that Macias had illegally reentered the United States and was subject to reinstatement of the prior removal order. Macias raises a purely legal challenge to this conclusion, contending that, because his reentry was "procedurally regular," he was not subject to reinstatement but was instead entitled to a full hearing before an immigration judge. We deny the petition for review.
I.
Macias, a native and citizen of Mexico, entered the United States with his family as a lawful permanent resident in 1976 at the age of six. In 1990, he was convicted in state court of attempted aggravated criminal sexual assault, aggravated battery, and burglary. While in prison for those crimes, he was also convicted of possession of a weapon by a felon. The Immigration and Naturalization Service ("INS") instituted removal proceedings against him while he was in prison, asserting that his convictions qualified as crimes involving moral turpitude, rendering him removable. 1
In 1993, an Immigration Judge ordered Macias removed from the United States to Mexico. The order also prohibited Macias from returning to the United States for five years unless he obtained permission from the Attorney General.
See
Macias did not remain there for long. The record contains no corroboration of when, how or where he crossed the border, but according to Macias, in April 1995, within weeks of his removal, he reentered the United States near Reynosa, Mexico. Macias returned to the United States purportedly to care for his young son who had been seriously injured in a car accident. Instead of seeking the consent of the Attorney General, he asserts that he approached a border inspection point in Texas prepared to offer his name and Social Security number. He claims that he encountered two border officers who waved him into the United States without questioning him or asking to see travel documents, instead greeting him with a friendly, "Welcome home." He returned to Chicago and remained there for twenty-one years. He made no attempt *675 during that time to bring his immigration status into compliance with the law.
In July 2016, Macias was arrested and charged with aggravated driving under the influence of alcohol. While that charge was pending, DHS served him with a Notice of Intent/Decision to Reinstate Prior Order of Removal. Citing
Macias opted for a written statement submitted by counsel. In the statement, counsel argued that Macias's reentry into the United States was lawful and thus did not meet the standard for reinstatement under section 1231(a)(5). In particular, Macias presented himself for inspection at a border checkpoint, did not deceive or attempt to deceive anyone, and was waved in by border guards. Counsel asserted that under the accompanying regulations and in light of
Matter of Quilantan
,
An ICE deportation officer then issued a decision rejecting Macias's arguments and reinstating the prior order of removal. The deportation officer found that
Quilantan
interpreted the word "admitted" as the term is used for adjustment of status, and in that context, the word denoted only procedural regularity.
See
*676 II.
We review
de novo
any questions of law regarding the interpretation of the Immigration and Nationality Act ("INA").
Borrego v. Mukasey
,
The government primarily asserts that the statute is not ambiguous and that the plain language controls the outcome here. But the government also asserts that, in the absence of Board authority addressing the precise question at issue here, this court should defer to the statutory interpretation of the deportation officer who drafted the Notice of Reinstatement of Removal Order in this case. The government cites
Skidmore v. Swift
,
We begin with the statutory language:
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.
*677 That term is not defined in the statute, and so Macias contends that we should turn to the implementing regulation:
(a) Applicability. An alien who illegally reenters the United States after having been removed, or having departed voluntarily, while under an order of exclusion, deportation, or removal shall be removed from the United States by reinstating the prior order. The alien has no right to a hearing before an immigration judge in such circumstances. In establishing whether an alien is subject to this section, the immigration officer shall determine the following:
(1) Whether the alien has been subject to a prior order of removal....
(2) The identity of the alien, i.e., whether the alien is in fact an alien who was previously removed ...
(3) Whether the alien unlawfully reentered the United States. In making this determination, the officer shall consider all relevant evidence, including statements made by the alien and any evidence in the alien's possession. The immigration officer shall attempt to verify an alien's claim, if any, that he or she was lawfully admitted, which shall include a check of Service data systems available to the officer.
In particular, Macias contends that the words "admitted" and "admission" have well-settled meanings in immigration law. Section 1101(a)(13)(A) of the Act provides:
The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.
Macias argues that Congress therefore expressly connected the concept of "admission" with "lawful entry." Macias presented himself for inspection and was authorized to enter by the two border guards who waved him into the country in 1995, he argues, and therefore his entry was lawful. And after all, he argues, there would be no need for an immigration officer to consider statements made by the alien or any evidence in the alien's possession (as provided in the regulation) if a simple check of DHS data systems could answer the question of lawfulness. But the regulation does not establish a definition for "illegal" reentry or a substantive standard for illegality in the reinstatement context. The regulation simply instructs DHS officials on how to go about collecting information needed to make the reinstatement determination. Nothing in the regulation renders the word "illegally" ambiguous. Moreover, Macias goes a step too far in trying to equate "admitted" with lawfully admitted.
Macias turns to
Matter of Quilantan
,
Quilantan petitioned for review. The Board noted that, over the years, Congress had loosened the requirements for applicants for adjustment of status, dropping the requirement of lawful admission and maintenance of non-immigrant status, and eventually requiring only inspection and admission or parole into the United States. That meant that, as of 1980, "as long as an alien's entry into the United States as a nonimmigrant was procedurally proper (i.e., the alien underwent an inspection by an immigration officer, who subsequently admitted the alien), the alien could seek adjustment of status under" section 1255.
Quilantan
,
By its own terms,
Quilantan
defined "admission" and "admitted" only when used "by themselves" for "purposes of adjustment of status" under section 1255.
The government cites the Tenth Circuit's opinion in
Cordova-Soto
in support of its position that Macias's reentry without the required permission from the Attorney General was illegal. Like Macias, Cordova-Soto lived in the United States as a lawful permanent resident when she was a child. She later committed two crimes involving moral turpitude. Like Macias, she was removed from the United States with a warning not to return for (in her case) ten years without obtaining special permission from the Attorney General. And like Macias, she returned anyway, without the requisite permission. She came through the border as one of three passengers in a taxi. The border inspector asked all of the passengers for identification. While Cordova-Soto "pretended to look for ID," the inspector moved onto other passengers, inspected the trunk, and then waved the car into the United States.
Cordova-Soto challenged the DHS determination that she was subject to reinstatement of the prior order of removal, claiming, in part, that her reentry was not illegal because it was procedurally regular. Like Macias, Cordova-Soto relied on Quilantan . The Tenth Circuit rejected Cordova-Soto's argument, noting that Quilantan *679 interpreted the term "admitted" as it is used in section 1255(a), that the holding was limited to the terms "admitted" and "admission" when used by themselves, and that Quilantan focused on the long history of requiring only a procedurally regular entry for eligibility for adjustment of status. In contrast, Congress in section 1231(a)(5) did not use the term "admitted" by itself or otherwise. Congress:
chose instead to hinge eligibility for reinstatement on illegal reentry, the plain meaning of which is a reentry in violation of the law. Nor do we believe that the BIA's unusual construction of "lawful entry" in the definition of "admitted" in § 1101(a)(13)(A)-which ignores the plain meaning of that term-reasonably extends beyond its use in that definition.
Cordova-Soto
,
The court also noted that an alien who has previously been removed is subject to criminal penalties if she thereafter "enters, attempts to enter, or is at any time found in, the United States," unless the Attorney General has expressly consented in advance to her applying for readmission, or she establishes that she was not required to obtain the Attorney General's advance consent.
See
We cannot conclude that a previously removed alien's procedurally regular entry could be, at the same time, a legal reentry for purposes of § 1231(a)(5), thereby precluding reinstatement of her removal order, yet also an illegal reentry subjecting her to criminal prosecution under § 1326(a).
Cordova-Soto
,
We find the reasoning of our sister circuit persuasive and see no reason to depart from it. Although Congress has made it progressively easier for some aliens to apply for adjustment of status under section 1255, lawmakers have also chosen to make it easier under section 1231(a)(5) to reinstate prior removal orders against those who have illegally reentered the United States after having previously been removed.
See
Fernandez-Vargas v. Gonzales
,
Other circuits have also treated a reentry after removal and without the Attorney General's consent (during the time period that consent is required) as an illegal reentry for the purposes of reinstatement under section 1231(a)(5).
See e.g.
,
Anderson v. Napolitano
,
In fact, prior to deciding
Cordova-Soto
, the Tenth Circuit found a procedurally regular entry to be unlawful for reinstatement purposes, although the alien had not raised the issue of procedural regularity.
See
Lorenzo v. Mukasey
,
In sum, the statute providing for reinstatement for aliens who have reentered "illegally" after previously having been removed is not ambiguous. A person who reenters without the consent of the Attorney General during the required period violates at least two laws and therefore reenters illegally.
See
PETITION DENIED.
Congress transferred the functions of the former INS to the Department of Homeland Security ("DHS") on March 1, 2003. The transfer does not affect any legal issue in the case, and the DHS did not exist during any of the original administrative proceedings.
See
United States v. Suarez
,
At the time Macias was first removed in 1995, the statute then in effect required a previously removed alien to seek permission for readmission from the Attorney General.
See
Reference
- Full Case Name
- Miguel MacIas MENDOZA, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
- Cited By
- 8 cases
- Status
- Published