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Mendoza v. Sessions

United States Court of Appeals, Seventh Circuit

May 31, 2018

Miguel Macias Mendoza, Petitioner,
v.
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Argued November 28, 2017

          On Petition for Review of a Final Removal Order of the u.s. Department of Homeland Security. a036 168 559.

          Before Bauer, Rovner, and Sykes, Circuit Judges.

          Rovner, Circuit Judge.

         In 1995, Miguel Macias Mendoza ("Macias") reentered the United States after having been removed only weeks earlier. When he came to the attention of the government more than twenty years later, a deportation officer for U.S. Immigration and Customs Enforcement ("ICE") determined that Macias had illegally reentered the United States and was subject to reinstatement of the prior removal order. Macias raises a purely legal challenge to this conclusion, contending that, because his reentry was "procedurally regular, " he was not subject to reinstatement but was instead entitled to a full hearing before an immigration judge. We deny the petition for review.

         I.

         Macias, a native and citizen of Mexico, entered the United States with his family as a lawful permanent resident in 1976 at the age of six. In 1990, he was convicted in state court of attempted aggravated criminal sexual assault, aggravated battery, and burglary. While in prison for those crimes, he was also convicted of possession of a weapon by a felon. The Immigration and Naturalization Service ("INS") instituted removal proceedings against him while he was in prison, asserting that his convictions qualified as crimes involving moral turpitude, rendering him removable.[1]

         In 1993, an Immigration Judge ordered Macias removed from the United States to Mexico. The order also prohibited Macias from returning to the United States for five years unless he obtained permission from the Attorney General. See 8 U.S.C. § 1182(a)(9)(A) (providing for a five-year period of inadmissibility unless the Attorney General has consented to the alien's reapplying for admission).[2] The Board of Immigration Appeals ("BIA") upheld the order, and in March 1995, Macias was removed to Mexico.

         Macias did not remain there for long. The record contains no corroboration of when, how or where he crossed the border, but according to Macias, in April 1995, within weeks of his removal, he reentered the United States near Reynosa, Mexico. Macias returned to the United States purportedly to care for his young son who had been seriously injured in a car accident. Instead of seeking the consent of the Attorney General, he asserts that he approached a border inspection point in Texas prepared to offer his name and Social Security number. He claims that he encountered two border officers who waved him into the United States without questioning him or asking to see travel documents, instead greeting him with a friendly, "Welcome home." He returned to Chicago and remained there for twenty-one years. He made no attempt during that time to bring his immigration status into compliance with the law.

         In July 2016, Macias was arrested and charged with aggravated driving under the influence of alcohol. While that charge was pending, DHS served him with a Notice of Intent/Decision to Reinstate Prior Order of Removal. Citing 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8 as authority, the Notice apprised Macias that DHS intended to reinstate the 1993 order that authorized his 1995 removal because Macias had illegally reentered the United States on an unknown date at an unknown place. The Notice provided that he could contest the determination that he illegally reentered and was subject to removal by reinstatement by providing an oral or written statement, but that he had no right to a hearing before an immigration judge. In a letter issued a few days later, ICE again invited Macias or his representative to make an oral or written statement in opposition to the contemplated reinstatement.

         Macias opted for a written statement submitted by counsel. In the statement, counsel argued that Macias's reentry into the United States was lawful and thus did not meet the standard for reinstatement under section 1231(a)(5). In particular, Macias presented himself for inspection at a border checkpoint, did not deceive or attempt to deceive anyone, and was waved in by border guards. Counsel asserted that under the accompanying regulations and in light of Matter of Quilantan, 25 I & N Dec. 285 (BIA 2010), Macias's "procedurally regular" entry was lawful. Counsel noted that the Seventh Circuit had yet to rule on whether a procedurally regular entry could constitute an unlawful one for purposes of reinstatement, but conceded that other circuits had concluded that procedurally regular but substantively unlawful entries were unlawful for reinstatement purposes. Those cases were distinguishable, counsel asserted, because in each case the alien had engaged in some form of fraud during the reentry process. Counsel also asked that ICE exercise prosecutorial discretion to allow Macias to remain in the country, asserting that he is "not an enforcement priority given the compelling and exceptional factors in his case, and his eligibility for other relief." Administrative Record at 63.

         An ICE deportation officer then issued a decision rejecting Macias's arguments and reinstating the prior order of removal. The deportation officer found that Quilantan interpreted the word "admitted" as the term is used for adjustment of status, and in that context, the word denoted only procedural regularity. See 8 U.S.C. § 1255 (providing for adjustment of status of nonimmigrant to that of person admitted for permanent residence). Compliance with substantive legal requirements was not, therefore, required to be lawfully admitted for adjustment of status. But in the case of reentry after having been previously removed, the deportation officer concluded that substantive compliance was necessary to avoid "illegal reentry" under section 1231(a)(5). The deportation officer cited Cordova-Soto v. Holder, 659 F.3d 1029 (10th Cir. 2011), in support, noting that the factual circumstances were very similar, and that the Tenth Circuit had concluded that procedural regularity was not sufficient for lawful reentry. The deportation officer found that Macias had never sought the permission of the Attorney General to return, and thus his reentry was unlawful and the prior order of deportation would be reinstated. Finally, prosecutorial discretion was denied due to the serious nature of Macias's past crimes, his admitted membership in the Latin Kings, and the nature of his recent arrest for aggravated driving under the influence. Macias petitions for review of the decision to reinstate the prior order of deportation.

         II.

         We review de novo any questions of law regarding the interpretation of the Immigration and Nationality Act ("INA"). Borrego v. Mukasey, 539 F.3d 689, 691 (7th Cir. 2008). "If Congress has directly spoken to the precise question at issue, then a court must follow that clear guidance." Cece v. Holder, 733 F.3d 662, 669 (7th Cir. 2013) (citing Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 842-43 (1984)). But if a statute is silent or ambiguous, the court must defer to authoritative interpretations of the law by the applicable agency. Cece, 733 F.3d at 669; Chevron, 467 U.S. at 844. In the context of interpreting ambiguous provisions in the INA, this typically ...


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