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Tomczyk v. Wilkinson
"We ... hold that a noncitizen has not “reentered the United States illegally” within the meaning of § 1231(a)(5) based solely on the fact of inadmissibility at the time of reentry. Rather, the act of “reenter[ing] . . . illegally” under § 1231(a)(5) requires some form of misconduct by the noncitizen—such as entering without inspection, entering in violation of a requirement to obtain advance consent from the Attorney General, or procuring admission by fraud—rather than merely the status of inadmissibility. We conclude that this interpretation of § 1231(a)(5) best comports with the structure of the INA, with the regulations governing reinstatement of removal orders, and with our reasoning in Morales-Izquierdo and Tamayo-Tamayo. We therefore grant the petition and remand for application of the correct legal standard under § 1231(a)(5). On remand, DHS may determine that Tomczyk is not subject to reinstatement of his prior deportation order under this standard and should be placed in regular removal proceedings before an IJ under § 1229a. Alternatively, DHS may determine on a more developed factual record that Tomczyk reentered without inspection, reentered within one year of June 2, 1990 without prior permission of the Attorney General, or procured admission by fraud. In the posture of this case, we decline to address Tomczyk’s remaining arguments that reinstatement under § 1231(a)(5) would violate his substantive and procedural due process rights. Conclusion Because we conclude that DHS applied the wrong legal standard for reinstatement of a prior order of removal under § 1231(a)(5), we grant the petition and remand for further proceedings consistent with this opinion."
[Hats off to Xavier Gonzales!]