Victory! Ninth Circuit Rejects Lawless Reentry

December 16, 2021

Holds illegal entry is determined by law, not border patrol oversight

WASHINGTON—In a case with clear relevance to the current crisis at the border, the full Ninth Circuit Court of Appeals, sitting en banc, handed down a decision Tuesday making abundantly clear that whether a foreign national has unlawfully entered the United States is determined by the law, not the actions or inaction of the border patrol. The Immigration Reform Law Institute (IRLI) had filed a friend-of-the-court brief in the en banc proceeding urging the Court to reach that result.

The case involved an illegal alien from Canada who, having been deported previously for a drug offense, was “waved through” a checkpoint back into the United States by a border patrol agent. The alien claimed that this action by the border patrol agent made his reentry lawful, and a three-judge panel of the Ninth Circuit agreed.

The full Ninth Circuit ordered rehearing en banc, vacated this judgment, and issued a diametrically opposite ruling. The Court held that whether a given entry by an alien is lawful or unlawful is determined by the law, not mistakes, oversights, or supposed “waivers” by the border patrol. And the law was clear that this alien had entered illegally, due to his prior deportation based on his drug conviction.

“Coming now, this ruling is especially important,” said Dale L. Wilcox, executive director and general counsel of IRLI. “It makes clear that the administration’s laxity at the border by no means legalizes the current flood of illegal entries. If strong enforcement comes back, that fact—and this ruling—will foreclose any claim of lawful presence by illegal aliens now being let in en masse. We applaud the full Ninth Circuit for this strong, timely decision.”

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