In a Ninth Circuit decision today in Tomcyzk v. Wilkinson, a three-judge panel split on the seemingly elementary question whether an alien has “reentered the United States illegally” when he was inadmissible at the time of his reentry.
In his majority opinion (joined by Judge Paul Watford), Judge William Fletcher concludes that illegal reentry under the statutory provision in question—8 U.S.C. § 1231(a)(5)—“requires more than mere status of inadmissibility” and instead depends, in some indeterminate way, “on the manner and circumstances of the entry.” “For example,” Fletcher states, “a noncitizen who sneaks across the border or deceives an immigration officer violates § 1325” and is subject to criminal and civil penalties.
Gary Tomczyk, the petitioner challenging a removal order, is a citizen of Canada who had been deported from the United States in 1990. Roughly a year later, he succeeded in reentering the United States by telling the border officer that he and his friends were visiting the U.S. “for beers.” In Fletcher’s view, “assuming the truth of this representation” (a matter that can be addressed on remand), Tomczyk did not reenter illegally even though he was inadmissible.
Judge Jay Bybee, in dissent, argues that an alien’s status as inadmissible renders his reentry illegal and that the government need not “prove some corrupt act in addition to the alien’s inadmissible status.” He further argues that the majority’s position is inconsistent with circuit precedent and creates a conflict with Tenth Circuit law.
Bybee points out that the alien in one of the previous Ninth Circuit cases (Tellez v. Lynch) “dressed up in a nice pretty dress and smiled at the immigration officer from the passenger seat of a car.” In response to her argument that she did not reenter illegally “because she presented herself at the border and was waved through without question,” the panel stated:
There’s no question that Tellez lacked valid documentation and intended to dupe border officials into letting her enter: Just a week before her successful entry, she signed a document acknowledging that she was prohibited from entering the country for five years. A pretty dress and charming smile are not substitutes for a visa. Her reentry was illegal.
Is Fletcher really going to count a “pretty dress and charming smile” as means of deception that render an otherwise legal reentry illegal? If so, future Ninth Circuit panels may be spending a lot of time fleshing out what “manner and circumstances” (beyond an alien’s inadmissibility) render an alien’s reentry illegal. If not, his ruling seems impossible to reconcile with Tellez.