The Ninth Circuit, sitting en banc, has determined that an inadmissible non-citizen who reenters the United States without obtaining consent from the US government is subject to reinstatement of a prior removal order, regardless of his manner of entry. In this case, the non-citizen was deported due to a drug conviction, which rendered him inadmissible at the time of his reentry through a port of entry.
“The record contains no indication that Tomczyk applied for, let alone received, a waiver of inadmissibility between his deportation in July 1990 and his reentry in July 1991, and Tomczyk does not argue otherwise. Nor does Tomczyk cite any authority suggesting that the INA permitted a border official to effectively grant such a waiver merely by allowing the vehicle in which he traveled to cross the border. Tomczyk’s qualifying conviction thus rendered him ineligible to be admitted to the United States at the time of his reentry. Because the law forbade Tomczyk from gaining admission into the United States in July 1991, we hold that his reentry was illegal under the plain meaning of § 1231(a)(5).”
The en banc decision in Tomczyk v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/14/16-72926.pdf
My blog post on the original 3-judge panel decision can be found here:
https://sabrina-damast.squarespace.com/config/pages/543afe51e4b005acd181a792
An amended en banc decision can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/11/16-72926.pdf