Tamayo-Tamayo v. Holder
725 F.3d 950
| 9th Cir. | 2013Background
- Tamayo-Tamayo petitions for review of reinstatement of a prior removal order after illegal reentry following prior removals.
- Born in Mexico, entered U.S. in 1973; removed in 1989; reentered illegally; 1993 removal order issued and executed.
- Petitioner reentered with an invalid pre-1989 permanent resident card; border officials allowed entry.
- Government reinstated the 1989 order under 8 U.S.C. § 1231(a)(5) and Petitioner was removed.
- Petitioner contests (1) validity of the prior removal order, (2) legality of reentry, and (3) due process concerns.
- The court denies the petition, upholding reinstatement and related decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1231(a)(5) reinstatement was proper | Tamayo-Tamayo argues 1989 order was superseded | Government shows reentry after removal satisfies §1231(a)(5) | Reinstatement proper |
| Whether reentry was illegal despite procedural regularity | Tamayo-Tamayo claims procedural regularity makes reentry legal | Reentry illegal due to lack of valid documentation | Reentry illegal notwithstanding procedural regularity |
| Whether due process was violated by arrest at interview | Tamayo-Tamayo asserts risk of prejudice without counsel | Arrest for reinstatement proper, no prejudice shown | No due process prejudice shown |
Key Cases Cited
- Hing Sum v. Holder, 602 F.3d 1092 (9th Cir.2010) (defined admission under §1101(a)(13)(A) as procedural, not substantive)
- In re Quilantan, 25 I. & N. Dec. 285 (B.I.A.2010) (addressed admissibility/entry definitions under different provision)
- Cordova-Soto v. Holder, 659 F.3d 1029 (10th Cir.2011) (reentry considered illegal despite procedural regularity)
- Beekhan v. Holder, 634 F.3d 723 (2d Cir.2011) (illegal reentry by using another’s passport for §1231(a)(5))
- Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir.2007) (due process prejudice standard)