Jessica Tellez v. Eric Holder, Jr.

Filing

FILED OPINION (ALEX KOZINSKI, JAY S. BYBEE and DONALD E. WALTER) DENIED. Judge: AK Authoring. FILED AND ENTERED JUDGMENT. [10170133]

Case: 12-73424, 10/24/2016, ID: 10170133, DktEntry: 53-1, Page 1 of 7

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JESSICA JHOANA TELLEZ,

No. 12-73424
Petitioner,

v.

Agency No.
A078-250-502

LORETTA E. LYNCH, Attorney
General,
Respondent.

OPINION

On Petition for Review of an Order of the
Department of Homeland Security
Argued and Submitted August 30, 2016
Pasadena, California
Filed October 24, 2016
Before: Alex Kozinski and Jay S. Bybee, Circuit Judges,
and Donald E. Walter,* Senior District Judge.
Opinion by Judge Kozinski

*

The Honorable Donald E. Walter, United States District Judge for
the Western District of Louisiana, sitting by designation.

Case: 12-73424, 10/24/2016, ID: 10170133, DktEntry: 53-1, Page 2 of 7

2

TELLEZ V. LYNCH
SUMMARY**

Immigration
The panel denied Jessica Tellez’s petition for review from
the Department of Homeland Security’s reinstatement of her
expedited removal order on the ground that she illegally
reentered the United States.
The panel held, on a question of first impression, that an
alien had previously “entered” the United States for the
purpose of the Immigration and Nationality Act’s
reinstatement provision’s “reentry” requirement when the
alien was issued a prior expedited removal order at a bordercrossing checkpoint.
The panel noted that its decision is limited to the
reinstatement provision’s definition of reentry, and that it
does not disturb the longstanding common-law definition of
“entry.” The panel wrote that it held only that the INA’s
reinstatement requirement of reentry after an initial removal
encompasses those who were removed after coming into the
U.S. at a border-crossing checkpoint and who subsequently
returned.
The panel also held that Tellez’s subsequent reentry was
illegal even though she presented herself at the border and
was waved through without question.

**

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

Case: 12-73424, 10/24/2016, ID: 10170133, DktEntry: 53-1, Page 3 of 7

TELLEZ V. LYNCH

3

COUNSEL
Matthew E. Roston (argued), Beverly Hills, California, for
Petitioner.
Craig Alan Newell, Jr. (argued) and Carmel A. Morgan, Trial
Attorneys; Shelley R. Goad, Assistant Director; Office of
Immigration Litigation, Washington, D.C.; for Respondent.

OPINION
KOZINSKI, Circuit Judge:
This case raises a question of first impression for the
federal courts: Has an alien “reentered” the United States for
the purpose of reinstating a removal order, 8 U.S.C.
§ 1231(a)(5), when she was previously removed at a bordercrossing checkpoint?
Jessica Tellez made her first known effort to cross the
U.S. border at San Ysidro in 2000. She claimed to be a U.S.
citizen, but a suspicious immigration officer referred her for
a secondary inspection. Tellez then admitted that she was a
Mexican citizen without a valid entry document. She was
deemed inadmissible and signed a statement acknowledging
that she could not return to the United States for five years.
Tellez was then issued an expedited removal order under
8 U.S.C. § 1225(b)(1) and was returned to Mexico.
Undaunted, Tellez returned to the United States the following
week. She “dressed up in a nice, pretty dress,” and “smile[d]
at the immigration officer” from the passenger seat of a car.
The officer waved the car through, and Tellez settled in the
United States.

Case: 12-73424, 10/24/2016, ID: 10170133, DktEntry: 53-1, Page 4 of 7

4

TELLEZ V. LYNCH

In 2012, Tellez applied for a waiver of inadmissibility and
adjustment of her status to that of a lawful permanent
resident. The applications were denied because she had
previously falsely represented herself as a citizen. The
Department of Homeland Security then reinstated Tellez’s
expedited removal order on the grounds that she had illegally
“reentered” the country. See 8 U.S.C. § 1231(a)(5). Tellez
petitioned for review.
1. Tellez claims that the reinstatement of her removal
order is invalid because she did not “reenter” the United
States. She argues that her initial attempt to cross the border
did not constitute an initial “entry” that can create a
subsequent “reentry.”
The reinstatement provision states:
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.
8 U.S.C. § 1231(a)(5) (emphasis added). So what creates a
“reentry”? We hold that when, as here, an alien is issued an
expedited removal order at a U.S. border-crossing checkpoint,
that alien has entered the United States for the purpose of the
reinstatement provision’s “reentry” requirement.

Case: 12-73424, 10/24/2016, ID: 10170133, DktEntry: 53-1, Page 5 of 7

TELLEZ V. LYNCH

5

We find our way to this conclusion by starting with the
plain meaning of the provision in question. See United States
v. Migi, 329 F.3d 1085, 1087 (9th Cir. 2003). The
Immigration and Nationality Act (INA) doesn’t define the
term reentry—or, for that matter, entry. But common sense
and a stack of dictionaries can tell us that the word enter
means “[t]o come or go into.” The American Heritage
Dictionary of the English Language 436 (1976); see also
United States ex rel. Claussen v. Day, 279 U.S. 398, 401
(“The word ‘entry’ by its own force implies a coming from
outside.”). Under this definition, Tellez entered the country
when she left Mexico and came into the sovereign territory of
the United States at the San Ysidro border-crossing station.
In addition, the section of the INA under which Tellez
was first returned to Mexico—a provision that authorizes the
“expedited removal of inadmissible arriving aliens,” 8 U.S.C.
§ 1225 (emphasis added)—necessarily implies an initial
entry. The verb remove is ordinarily defined as “[t]o move
from a position occupied.” American Heritage Dictionary,
supra, at 1101. It makes no sense to speak of removing
someone who has not yet entered or never occupied a
position—say, removing Clint Eastwood from the papacy or
removing a colony from Mars. Entry implies movement in;
removal implies movement out. Tellez must have first
entered U.S. territory in order to be removed from it. Having
entered once, her second entry was a reentry.
We acknowledge that the definition of entry developed at
common law has a narrower and more technical meaning:
Entry “has not been accomplished until physical presence is
accompanied by freedom from official restraint.” United
States v. Pacheco-Medina, 212 F.3d 1162, 1164 (9th Cir.
2000) (internal reference omitted). We have also used this

Case: 12-73424, 10/24/2016, ID: 10170133, DktEntry: 53-1, Page 6 of 7

6

TELLEZ V. LYNCH

judge-made definition to interpret some criminal provisions
of the INA. See id. at 1163–65; see also United States v.
Lombera-Valdovinos, 429 F.3d 927, 928 (9th Cir. 2005)
(noting that the term enter, for the purposes of 8 U.S.C.
§ 1326, “has a narrower meaning than its colloquial usage”).
Our decision today—which is limited to the reinstatement
provision’s definition of “reentry”—does not disturb this
longstanding common-law definition. We hold only that the
INA’s reinstatement provision, which requires reentry after
an initial removal, encompasses those who, like Tellez, were
removed after coming into U.S. territory at a border-crossing
checkpoint and subsequently returned to the United States.
Our interpretation of the reinstatement provision is
supported by the “fundamental canon of statutory
construction that the words of a statute must be read . . . with
a view to their place in the overall statutory scheme.” Food
& Drug Admin. v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 133 (2000) (internal reference omitted).
Congress intended the reinstatement provision to sweep
broadly. It expanded the provision in 1996 to cover all aliens
who reenter the United States after being removed; its
predecessor applied to only a subset of illegal reentrants. See
De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1279 (11th
Cir. 2006) (comparing 8 U.S.C. § 1231(a)(5) with its
predecessor 8 U.S.C. § 1252(f) (1994)). The legislative
history of the 1996 amendment confirms that Congress
sought to streamline the removal process and cover all
entering aliens who violate a prior removal order. See id. at
1282 (discussing H. Rep. No. 104–469 and S. Rep. No.
104–249). It would be puzzling for Congress to significantly
expand the reinstatement provision, yet leave open a trucksized hole for all aliens first removed from a border crossing.

Case: 12-73424, 10/24/2016, ID: 10170133, DktEntry: 53-1, Page 7 of 7

TELLEZ V. LYNCH

7

2. Tellez also claims that she did not reenter the United
States illegally under 8 U.S.C. § 1231(a)(5) because she
presented herself at the border and was waved through
without question. But a successful entry can still be an illegal
entry. See Tamayo-Tamayo v. Holder, 725 F.3d 950, 952
(9th Cir. 2013) (holding on similar facts that an entry was
illegal because petitioner “lacked valid documentation that
permitted him to enter”). 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.
DENIED.