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The intersection of criminal law and immigration law

9 Cir: Not all entries are equal

Showing up at the border, presenting an LPR card, and being allowed to enter the USA doesn’t necessarily mean you reentered legally, the Ninth Circuit concluded. Tamayo-Tamayo v. Holder, No. 08-74005, slip op. (9th Cir. Feb. 28, 2013) (Noonan, Graber, and Fisher, JJ.). Judge Graber wrote the panel’s opinion.

This case involves an LPR who was removed in 1989 and again in 1993. Sometime later “he entered at a border crossing by presenting his pre-1989 permanent resident card to the border official. The border official allowed Petitioner physically to enter the country.” Tamayo-Tamayo v. Holder, No. 08-74005, slip op. at 3. Tamayo-Tamayo came onto the government’s radar when he applied to renew his LPR card. “The government sent Petitioner a letter advising him of an appointment—ostensibly to discuss his application. When Petitioner arrived for his appointment, however, the government arrested him.” Tamayo-Tamayo v. Holder, No. 08-74005, slip op. at 4.

The government then tried to reinstate his prior removal order. Tamayo-Tamayo challenged reinstatement by arguing that he had not “reentered the United States illegally” as the reinstatement statute requires. 8 U.S.C. § 1231(a)(5).

The Ninth Circuit had no difficulty rejecting Tamayo-Tamayo’s claim. Even though his entry “was procedurally regular,” the court explained, his “deceptive behavior at the border did not render his entry legal.” Tamayo-Tamayo v. Holder, No. 08-74005, slip op. at 5. The reinstatement provision does not exempt people “who were able to dupe border officials into thinking that they had authorization to enter.” Tamayo-Tamayo v. Holder, No. 08-74005, slip op. at 6. Later the court explained that Tamayo-Tamayo “tricked the border official into allowing him physically to enter.” Tamayo-Tamayo v. Holder, No. 08-74005, slip op. at 8.

At no point does the court explain just what it means, though. Presumably it means that Tamayo-Tamayo was deceptive because he should have known that his LPR card didn’t allow him to come back into the USA after his earlier deportation. I find this to be a bit tough to swallow because it’s the obligation of a prospective entrant to appear at a port of entry and ask to be allowed to come into the country, but it seems to me to be the responsibility of the border official to decide whether admission is appropriate. Indeed, the INA’s definition of “admission” consists of nothing more than “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” INA § 101(a)(13)(A). I’ve always read the “lawful entry” part to be the government agent’s responsibility and the presentment for inspection and authorization to be the responsibility of the prospective entrant.

It’s possible that Tamayo-Tamayo did something more deceptive than just show up at the border and hand over his LPR card. That would be problematic if it happened. However, the court doesn’t say that it did and I’m not willing to assume something so important.

Regardless, the court was satisfied that Tamayo-Tamayo’s procedurally regular entry was not a lawful entry, therefore he was in the USA after having reentered illegally. Thus, reinstatement was appropriate. Tamayo-Tamayo v. Holder, No. 08-74005, slip op. at 8.

The court then punted on Tamayo-Tamayo’s claim that his due process rights were violated when the government tricked him into showing up for an appointment knowing that they were planning to arrest him. Had he known of the government’s plan, Tamayo-Tamayo claimed, he would have taken a lawyer with him. “But he has not shown how having a lawyer present could have made any difference to the outcome,” the court explained. “[I]ssuance of the reinstatement order was proper and, even with skilled legal counsel, no relief was available to Petitioner.” Tamayo-Tamayo v. Holder, No. 08-74005, slip op. at 8.

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