Pedro Tamayo-Tamayo v. Eric H. Holder Jr.

Filing

Filed order and amended opinion (JOHN T. NOONAN, SUSAN P. GRABER and RAYMOND C. FISHER). Amending Disposition Opinion DENIEDThe opinion filed February 28, 2013, and published at 709 F.3d 795, is amended as follows: (see order for full text) With these amendments, Judge Graber has voted to deny the petition for rehearing en banc, and Judges Noonan and Fisher have so recommended. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it. The petition for rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc will be entertained. [8671243]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PEDRO TAMAYO-TAMAYO,
Petitioner,

No. 08-74005

v.

Agency No.
A034-483-785

ERIC H. HOLDER JR., Attorney
General,
Respondent.

ORDER AND
AMENDED
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 16, 2013—San Francisco, California
Filed February 28, 2013
Amended June 18, 2013
Before: John T. Noonan, Susan P. Graber, and
Raymond C. Fisher, Circuit Judges.
Order;
Opinion by Judge Graber

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TAMAYO-TAMAYO V. HOLDER
SUMMARY*

Immigration
The panel ordered amended its opinion filed February 28,
2013, and published at 709 F.3d 795, and denied Pedro
Tamayo-Tamayo’s petition for review of the government’s
reinstatement of his prior order of removal, following his
illegal reentry into the United States after having been
removed.
In the original and amended opinions, the panel held that
Tamayo’s substantively illegal reentry met the illegal reentry
requirement in the reinstatement statute, 8 U.S.C.
§ 1231(a)(5), even though he tricked a border official into
allowing him to enter. In the amended opinion, the panel
wrote that such holding is consistent with decisions of the
Second and Tenth circuit courts.

COUNSEL
Bernadette Willeke Connolly and Raul Ray, San Jose,
California, for Petitioner.
Edward E. Wiggers, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for Respondent.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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ORDER
The opinion filed February 28, 2013, and published at
709 F.3d 795, is amended as follows:
On slip opinion page 6, first full paragraph, lines 1–2,
change “Our decision in Hing Sum v. Holder, 602 F.3d 1092
(9th Cir. 2010), is not to the contrary. It interpreted” to “Our
decision in Hing Sum v. Holder, 602 F.3d 1092 (9th Cir.
2010), and the BIA’s decision in In re Quilantan, 25 I. & N.
Dec. 285 (B.I.A. 2010), are not to the contrary. Those
decisions interpreted”.
On slip opinion page 6, first full paragraph, line 4, change
“In that case,” to “In Hing Sum,”.
On slip opinion page 8, at the end of the first paragraph,
insert:
Our holding is consistent with the decisions of
our sister circuits. See Cordova-Soto v.
Holder, 659 F.3d 1029, 1031–35 (10th Cir.
2011) (rejecting the petitioner’s argument
that, because her reentry was “procedurally
regular,” § 1231(a)(5) was inapplicable), cert.
denied, 133 S. Ct. 647 (2012); Beekhan v.
Holder, 634 F.3d 723, 725 (2d Cir. 2011) (per
curiam) (holding that “knowingly using
another person’s passport to reenter the
United States” is an illegal reentry for
purposes of § 1231(a)(5)).

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TAMAYO-TAMAYO V. HOLDER

With these amendments, Judge Graber has voted to deny
the petition for rehearing en banc, and Judges Noonan and
Fisher have so recommended.
The full court has been advised of the petition for
rehearing en banc, and no judge of the court has requested a
vote on it.
The petition for rehearing en banc is DENIED. No
further petitions for rehearing or rehearing en banc will be
entertained.

OPINION
GRABER, Circuit Judge:
Petitioner Pedro Tamayo-Tamayo petitions for review of
the government’s reinstatement of a prior order of removal,
following his illegal reentry into the United States after
having been removed. Reviewing de novo, Garcia de Rincon
v. Dep’t of Homeland Sec., 539 F.3d 1133, 1136 (9th Cir.
2008), we reject Petitioner’s legal challenges to the
reinstatement order. Accordingly, we deny the petition.
FACTUAL AND PROCEDURAL HISTORY
Petitioner was born in Mexico. He entered the United
States in 1973. In 1989, the government ordered Petitioner
removed to Mexico and removed him that same day.
Petitioner reentered the United States, without permission.
For unknown reasons, the government chose to seek a new

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order of removal instead of reinstating the 1989 order of
removal. In 1993, the government again ordered Petitioner
removed to Mexico and removed him the next day.
Petitioner reentered the United States without legal
authorization yet again. According to Petitioner, 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.
Thereafter Petitioner filed an application to replace his
permanent resident card. Upon receiving the application, the
government realized that Petitioner had no legal authority to
be in the country. 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. The government
presented its notice of intent to reinstate the prior order of
removal, an immigration official reinstated the prior order of
removal, and Petitioner was removed.
Petitioner timely petitions for review.
DISCUSSION
Petitioner argues that the immigration officer committed
legal error in determining (1) that he was subject to a valid
prior removal order and (2) that he illegally reentered the
United States. Petitioner also argues (3) that the immigration
officer violated his due process rights by using a ruse to
apprehend him.

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TAMAYO-TAMAYO V. HOLDER
A. Prior Removal Order

The government reinstated Petitioner’s 1989 removal
order pursuant to 8 U.S.C. § 1231(a)(5):
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.
The plain text of the statutory provision was met with respect
to the 1989 removal order: The Attorney General found that
Petitioner had reentered illegally after having been removed
under the 1989 removal order, so that order is reinstated from
its original date, and Petitioner shall be removed under that
order at any time after reentry. We reject, as unsupported and
as contrary to the statute’s text, Petitioner’s bald assertion
that the 1989 removal order was “superseded” or otherwise
invalidated simply because a later removal order exists.
B. Illegal Reentry
“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 . . . .” 8 U.S.C.
§ 1231(a)(5) (emphasis added). When Petitioner reentered
the country after his 1993 removal, he lacked valid

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documentation that permitted him to enter. Accordingly, he
was inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an
alien “who is not in possession of a valid unexpired
[authorization document],” and his entry was illegal.
It is true that Petitioner’s most recent entry was
procedurally regular: He presented himself to the border
officials, he showed them his (invalid) alien registration card,
and they allowed him physically to enter the country. But
Petitioner’s deceptive behavior at the border did not render
his entry legal. Nothing in the statute or elsewhere suggests
that Congress intended that the reinstatement provision would
not apply to aliens who were able to dupe border officials into
thinking that they had authorization to enter, or that Congress
otherwise intended to reward fraudulent behavior.
Our decision in Hing Sum v. Holder, 602 F.3d 1092 (9th
Cir. 2010), and the BIA’s decision in In re Quilantan, 25 I. &
N. Dec. 285 (B.I.A. 2010), are not to the contrary. Those
decisions interpreted a different statutory provision—the
definition of “admission” under 8 U.S.C. § 1101(a)(13)(A).1
In Hing Sum, the petitioner had entered the United States as
a legal permanent resident (“LPR”) in 1990. Id. at 1093. In
2001, after he was convicted of a serious crime, the
government sought to remove him. Id. at 1093–94.
Petitioner wanted to apply for a statutory waiver, but that type
of relief was available to non-LPRs only. Id. at 1094.
Petitioner cleverly argued that, in 1990, he had obtained his

1

For the same reason, the Board of Immigration Appeals’ (“BIA”)
decision in In re Areguillin, 17 I. & N. Dec. 308 (B.I.A. 1980), also is not
contrary to our decision. In that case, the BIA interpreted the phrase
“inspected and admitted,” as used in a now-revoked statutory provision.

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LPR status by fraud and that, accordingly, he was a non-LPR
for purposes of applying for the statutory waiver. Id.
We held that resolution of the case hinged on the statute’s
general definition of “admission” under 8 U.S.C.
§ 1101(a)(13)(A): “the lawful entry of the alien into the
United States after inspection and authorization by an
immigration officer.” Hing Sum, 602 F.3d at 1095–96. We
began our analysis of that term by noting that the word
“admission” could mean a procedurally regular
admission—“an inspection and authorization by an
immigration officer”—or it could mean a substantively legal
admission—the entry of those “who were properly admissible
as LPRs at the time of entry, and not individuals like Sum
who were admissible through appearance alone.” Id. at 1096.
We concluded that, for reasons specific to
§ 1101(a)(13)(A) and to the term “admission,” Congress
intended “admission” to mean lawful entry only in the
procedural sense. Hing Sum, 602 F.3d at 1097–1101. In
particular, the substantive meaning would render part of the
statute superfluous and also would lead to absurd results. Id.
at 1097. For example, the immigration laws sometimes refer
to “admission” and other times to “lawful admission.” Id. at
1099. A procedural definition of “admission” gave effect
to those provisions referring to “lawful admissions”—
admissions that are both procedurally lawful and, because
they are specified as “lawful admissions,” substantively
lawful. Id. We also found support for our procedural
interpretation of “admission” in the “evolution of the statute.”
Id. Case law and BIA interpretation in effect at the time that
Congress defined the term supported our interpretation. Id.
at 1099–1101. Finally, we noted that our decision accorded
with decisions by our sister circuits and the BIA. Id. at 1096

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& n.3. In sum, we held that the history and context of that
specific statutory provision demonstrated that Congress
intended the procedural meaning.
Unlike in Hing Sum, nothing suggests that Congress
intended the procedural definition to apply to the phrase
“reentered the United States illegally” in § 1231(a)(5).
Interpreting the term in its substantive sense does not lead to
superfluous text or absurd results, and nothing in the history
of § 1231(a)(5) suggests that Congress intended the
procedural meaning of illegal reentry.
We hold that Petitioner’s substantively illegal reentry met
the requirement in § 1231(a)(5) that he had “reentered the
United States illegally,” notwithstanding the fact that he
tricked the border official into allowing him physically to
enter. Our holding is consistent with the decisions of our
sister circuits. See Cordova-Soto v. Holder, 659 F.3d 1029,
1031–35 (10th Cir. 2011) (rejecting the petitioner’s argument
that, because her reentry was “procedurally regular,”
§ 1231(a)(5) was inapplicable), cert. denied, 133 S. Ct. 647
(2012); Beekhan v. Holder, 634 F.3d 723, 725 (2d Cir. 2011)
(per curiam) (holding that “knowingly using another person’s
passport to reenter the United States” is an illegal reentry for
purposes of § 1231(a)(5)).
C. Due Process
The government’s decision to arrest and remove
Petitioner when he showed up for his interview did not
prejudice him. Accordingly, we need not, and do not, decide
whether there was a due process violation. See MoralesIzquierdo v. Gonzales, 486 F.3d 484, 496 (9th Cir. 2007) (en

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banc) (holding that, to obtain relief, a petitioner must
demonstrate a due process violation and prejudice).
“To show prejudice, [a petitioner] must present plausible
scenarios in which the outcome of the proceedings would
have been different if a more elaborate process were
provided.” Id. at 495 (internal quotation marks omitted).
Here, Petitioner makes no allegation that the outcome of the
proceedings would have or could have been different, had he
been apprehended through other means. At oral argument, he
asserted that he was prejudiced because he did not bring a
lawyer with him, which he would have done had he known
about the government’s intentions. But he has not shown
how having a lawyer present could have made any difference
to the outcome. As discussed above, issuance of the
reinstatement order was proper and, even with skilled legal
counsel, no relief was available to Petitioner. Accordingly,
Petitioner cannot show prejudice, so his due process claim
fails. See id. at 496.
Petition DENIED.