10 Cir: Lawful entry can be illegal reentry

By University of Denver Sturm College of Law

Feb 21, 2012

The U.S. Court of Appeals for the Tenth Circuit held that an entry that would constitute a lawful entry for purposes of admission was an illegal reentry for purposes of reinstatement of removal. Cordova-Soto v. Holder, No. 10-9569, slip op. (10th Cir. Oct. 17, 2011) (Hartz, Holloway, and Porfilio, JJ.). Judge Holloway wrote the panel’s decision.

This case involves an LPR who, pro se, requested and received a stipulated order of removal in which she conceded removability for having been convicted of an aggravated felony among other charges. Cordova-Soto, No. 10-9569, slip op. at 2-3. She was removed, but returned less than a month later. Cordova-Soto, No. 10-9569, slip op. at 4-5. Importantly, she did not seek the Attorney General’s permission to reapply for admission as she was required to do. INA § 212(a)(9)(A)(iii). Instead, she explained that she returned as a backseat passenger in a taxi that passed through the Eagle Pass, Texas port-of-entry after being inspected by an immigration officer. Cordova-Soto, No. 10-9569, slip op. at 5.

Because she presented herself at the port-of-entry, Cordova-Soto argues that this entry cannot serve as the basis for reinstatement of removal, INA § 241(a)(5), because one of the requirements for reinstatement of removal is that “‘the alien unlawfully reentered the United States.’” Cordova-Soto, No. 10-9569, slip op. at 8 (quoting 8 C.F.R. § 241.8(a)).

Cordova-Soto based her argument on the BIA’s decision in Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), in which the Board held that the “lawful entry” requirement of the INA’s definition of “admitted,” INA § 101(a)(13)(A), refers only to “procedural regularity.” Cordova-Soto, No. 10-9569, slip op. at 10 (discussing Matter of Quilantan, 25 I&N Dec. at 289). The BIA in Quilantan “concluded that the petitioner’s entry was procedurally regular because she physically presented herself for questioning and made no knowing false claim to citizenship.” Cordova-Soto, No. 10-9569, slip op. at 11 (discussing Matter of Quilantan, 25 I&N Dec. at 293).

The Tenth Circuit refused to extend Matter of Quilantan’s reasoning to the reinstatement of removal context. Indeed, the court suggested that it would reject the BIA’s interpretation of the lawful entry requirement in Matter of Quilantan were the question posed. The Tenth Circuit described the Quilantan analysis as an “unusual construction of ‘lawful entry’…which ignores the plain meaning of that term….” Cordova-Soto, No. 10-9569, slip op. at 12. Though it did not have occasion to overturn Matter of Quilantan in this instance, it did refuse to extend that decision beyond the INA § 101(a)(13)(A) “admitted” context. Cordova-Soto, No. 10-9569, slip op. at 12.

Instead of relying on Quilantan as Cordova-Soto suggested, the Tenth Circuit turned to its decision in Lorenzo v. Mukasey, 508 F.3d 1278 (10th Cir. 2007), which held that an individual who had previously been removed“was precluded from gaining lawful admission to the United States…without obtaining authorization to do so from the Attorney General.” Lorenzo, 508 F.3d at 1283. The Lorenzo petitioner, the Tenth Circuit concluded in that case, “could not have reentered the country legally.” Lorenzo, 508 F.3d at 1283.

Applying Lorenzo to Cordova-Soto’s situation, the Tenth Circuit explained: “Under our holding in Lorenzo, Ms. Cordova-Soto’s reentry less than a month after her removal was illegal because she was inadmissible under § 1182(a)(9)(A)(ii) [INA § 212(a)(9)(A)(ii)], as a previously removed alien convicted of an aggravated felony who sought admission without obtaining the Attorney General’s consent.” Cordova-Soto, No. 10-9569, slip op. at 9.

In other words, “Because she [Cordova-Soto] could not have entered the United States legally at that time, her reentry was illegal and she was therefore subject to reinstatement of her previous removal order….” Cordova-Soto, No. 10-9569, slip op. at 15.

It strikes me that the Tenth Circuit’s interpretation seems to place the burden on the noncitizen to show that she did not reenter unlawfully. The INA, after all, does not eliminate the possibility that an individual removed after an aggravated felony conviction has been readmitted. It only requires the Attorney General’s permission to reapply (permission that, admittedly, is rarely granted). INA § 212(a)(9)(A)(iii). Presumably the government knows when it grants permission.

Given that the regulations place the burden on the government to show that the individual entered unlawfully, 8 C.F.R. § 241.8(a)(3), it seems to make sense to require the government to show that it did not allow the noncitizen permission to apply for admission. Instead, the Tenth Circuit’s position seems to subvert the regulatory burden imposed by 8 C.F.R. § 241.8(a) by requiring the noncitizen to show that she was granted permission to reapply for admission.