An example of how a court deals with contrary precedents in making a decision.

Sunday, May 21st, 2017
By: Jonathan MontagJ.D.

It has been a while since I have blogged. My apologies. Between executive orders and all the other shenanigans (if high crimes and misdemeanors are shenanigans), I have been distracted. Having not been to a demonstration since I was 16 years old, I have recently been to three. They take away from blogging time.

One topic I like to blog about is important or interesting cases. Sometimes I deal with a case where holdings are ignored, such as Momeni v. Chertoff, overruled by memo and rightly so, as discussed here.  Sometimes, because the case is important but rarely cited, like “my own” Lara-Cazares v. Gonzales, which made clear that recklessness as not distinguishable from negligence in the crime of violence context, something the pundits debate despite the case.

The overlooked case for today is Tellez v. Lynch,  published last October. It is interesting because it must address contradictory precedent. It demonstrates what a fan might call agility in jurisprudence and a critic might call casuistry in jurisprudence.

The case deals with reinstatement of removal. The statute, at INA § 241(a)(5), 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.

What seems straightforward has (at least) two complications. The first, and the principal focus of the case, is whether a person who is expeditely removed can have his case reinstated. As discussed here, expedited removal is the process where immigration officers can order the removal of aliens rather than immigration judges doing the ordering. Initially, expedited removals occurred at U.S. border inspection posts. The President, on February 20, 2017, announced the intention of extending the expedited removal process to include people apprehended inside the United States.

As the New York Times described the new policy, yet to be formally adopted:

Under the Obama administration, the program, known as “expedited removal,” was used only when an immigrant was arrested within 100 miles of the border and had been in the country no more than 14 days. Now it will include all those who have been in the country for up to two years, no matter where they are caught.  

Tellez involved a woman who was expeditedly removed at the San Ysidro, California, Port of Entry in the year 2000. She then re-entered the United States by being waived in a week later. Waiving in, which occurred extremely frequently before 9-11, is when an officer would inspect a person’s entry documents and simply let them into the United States. An officer may have checked some ID, a driver license or a school ID, but not a visa or passport.  Older timers recall crossing into the United States by being asked, “Citizenship,” and answering “U.S.” and just being waived in. Adding a more literary flourish to the waiving in Tellez, the court noted Ms. Tellez’s description of the waive in – 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.” I, like hundreds of thousands or millions of others have been waived in, and in my case it did not involve a dress, nice and pretty or otherwise.

The issue is whether Ms. Tellez, who was apprehended at the border, expeditiously removed by an officer, and then who successfully entered the country a week later, should be considered “reentering” the country after the failed entry or was she entering for the first time when she successfully entered. Ms. Tellez’s position on appeal was that having never made it into the country in the first place, the successful entry a week later cannot by definition be a “reentry,” making her subject to reinstatement. Rather the successful entry a week later was  an initial entry, which could not lead to reinstatement. Her position, she asserted, is supported by the plain language of  INA § 241(a)(5) and the fact there is case law that discusses entry as requiring being free from official restraint, which Ms. Tellez never was as she was apprehended at the border.

The court found otherwise, holding that the reinstatement provision was Congress’s way of expanding the authority of immigration officers and expeditiously removing the already-removed, and to not consider the expeditedly removed as having entered for purposes of reinstatement, would be an inexplicable giant exception to the statute.  As the court put it, “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.” That this concern for the intention of Congress trumps (pun intended) the plain language of the statute and case law interpreting the concept of entry is somewhat remarkable.

The second issue in the case is also significant. The reinstatement provision requires that the person have reentered the United States illegally to be subject to reinstatement. The question is whether Ms. Tellez’s waive-in was an illegal entry. The Tellez court, relying on prior precedent,  concluded that for purposes of reinstatement, Ms. Tellez’s entry without a proper visa was illegal. As the court put it, “A pretty dress and charming smile are not substitutes for a visa. Her reentry was illegal.” To do this, the court had to navigate around other decisions by the court and the BIA  that a lawful entry, as discussed at INA § 101(a)(13), included waive ins and entries with an invalid visa.

One has to assume that the holding in Tellez would allow for the reinstatement of removal not only for waive ins and people holding visas issued before the expedited removal, but people holding  improperly issued subsequent visas and visas where the person had overstayed, which results in automatic cancellation of the visa. See, INA § 222(g).

The takeaways from Tellez are two: 1) An expedited removal order can be reinstated, and 2) Entry by waive in or with an invalid visa is an illegal entry, regardless of what a person says or does, in the context of expedited removal.

Emerson wrote, “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines….” In reasoning around established precedents to find that (1) an expedited removal at the border involved and entry and (2) a procedurally valid admission is not a legal entry, this case shows that its author was not a man with a little mind. And, lest there be any confusion, that is a compliment. Posted May 21, 2017.


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