Ninth Circuit to Redefine Illegal Reentry?

August 11, 2021

IRLI urges court to close loophole for repeat illegal aliens

WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief before the full Ninth Circuit Court of Appeals, sitting en banc, in a case that will decide the meaning of “illegal entry” for purposes of reinstating removal orders.

Under the law, when an alien who has been subject to a removal order and deported later re-enters the country illegally, the original removal order is reinstated and the alien is deported again pursuant to it. In this case, an alien from Canada was deemed inadmissible on the basis of possession of a controlled substance and deported pursuant to a final order of removal. He later reentered the United States, but claims he did not do so illegally because a border patrol agent waved him through a checkpoint. Thus, he claims, his prior removal order should not be reinstated.

In its brief, IRLI points out that an inadmissible alien who reenters the country does so illegally even if his reentry was procedurally regular, because entering while not being properly admissible is a recognized form of illegal entry. To limit “illegal entry” to the method of passage through the border itself would create an incentive for inadmissible aliens who had been deported once to try to enter again, in the hopes of wiping out their prior removal order.

“Congress intended repeat illegal aliens to be deported swiftly the second time, without the government having to go through the process of procuring a second removal order,” said Dale L. Wilcox, executive director and general counsel of IRLI. “We hope the full Ninth Circuit sees this, and refuses to create a loophole for inadmissible aliens to benefit from the mistake or inattentiveness of overworked border agents.”  

The case is Tomczyk v. Garland, No. 16-72926 (Ninth Circuit).