Gary Tomczyk v. Merrick Garland ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY TOMCZYK, No. 16-72926
Petitioner,
Agency No.
v. A029-468-078
MERRICK B. GARLAND, Attorney
General, ORDER AND
Respondent. AMENDED
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted En Banc September 21, 2021
Pasadena, California
Filed December 14, 2021
Amended February 11, 2022
Before: Sidney R. Thomas, M. Margaret McKeown, Kim
McLane Wardlaw, Ronald M. Gould, Richard A. Paez,
Consuelo M. Callahan, Ryan D. Nelson, Eric D. Miller,
Kenneth K. Lee, Danielle J. Forrest, and Lawrence
VanDyke, Circuit Judges.
Order;
Opinion by Judge Callahan
2 TOMCZYK V. GARLAND
SUMMARY *
Immigration
The en banc court filed (1) an order granting the
respondent’s motion to amend the opinion filed on
December 14, 2021; and (2) an amended opinion denying in
part and dismissing in part Gary Tomczyk’s petition for
review of a decision of the Board of Immigration Appeals.
In the amended opinion, the en banc court held that an
individual’s inadmissible status renders that individual’s
reentry illegal for purposes of reinstatement of a prior
removal order under 8 U.S.C. § 1231(a)(5), regardless of the
individual’s manner of reentry.
Tomczyk, a citizen of Canada, was deported in July
1990. He reentered in July 1991 after he was waved into the
country by an immigration official. More than 25 years later,
the Department of Homeland Security (“DHS”) reinstated
his prior order under § 1231(a)(5), which only requires proof
that (1) petitioner is an alien, (2) who was subject to a prior
removal order, and (3) who “reentered the United States
illegally.” A divided three-judge panel of this court granted
Tomczyk’s petition for review, holding that his reentry was
not illegal because he was purportedly waved into the
country, and that a noncitizen’s status of inadmissibility,
standing alone, was insufficient to render the reentry illegal.
The en banc court concluded that DHS did not err in
reinstating Tomczyk’s removal order. Observing that the
Immigration and Nationality Act does not define the phrase,
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
TOMCZYK V. GARLAND 3
“reentered the United States illegally,” the en banc court
looked to the language’s ordinary meaning. Applying the
ordinary and commonly understood meaning of “illegal,” as
reflected in dictionary definitions, the en banc court
concluded that a noncitizen reenters “illegally” when the
noncitizen is forbidden by law from gaining admission into
the country.
Addressing whether Tomczyk was legally permitted to
reenter in July 1991, the en banc court explained that he had
been deported in part under a drug-related ground of
inadmissibility and there was no indication that he had
obtained a waiver of inadmissibility. Nor did Tomczyk cite
any authority suggesting that the manner of his reentry
effected a waiver. Because the law forbade Tomczyk from
gaining admission in July 1991, the en banc court concluded
that his reentry while inadmissible was illegal as a matter of
law. The en banc court observed that its conclusion is
consistent with the court’s precedent, which in turn is
consistent with the interpretations of the two other circuits to
have addressed this question.
Tomczyk next argued that the government should be
estopped from claiming that he reentered illegally because
the government had given him a notice at the time of his
deportation, which stated that, if he desired to reenter within
one year, he would have to request permission to reapply for
admission and stated that reentry within a year without
permission would subject him to prosecution. Tomczyk
claimed that he chose to wait more than a year before
reentering because he interpreted this notice to mean that he
would then be free to reenter. The en banc court rejected his
argument, observing that the record contained no indication
of government misconduct and that Tomczyk had no right to
reenter the country in July 1991 or anytime thereafter. Thus,
4 TOMCZYK V. GARLAND
the en banc court concluded that neither the issuance of the
notice nor the border official’s decision to wave Tomczyk
into the country deprived him of any rights to which he
otherwise would have been entitled.
Tomczyk also contended that § 1231(a)(5) could not be
applied retroactively against him. The en banc court rejected
this argument, explaining that Tomczyk had no pending
application when the law came into effect and that merely
being eligible to apply for relief in the future was
insufficient.
Finally, the en banc court rejected Tomczyk’s due
process arguments. First, as to his contention that the
reinstatement arbitrarily denied him the ability to remain in
the United States with his United States Citizen wife, thus
depriving him of family unity, the en banc court explained
that the court previously rejected this argument. Second,
Tomczyk argued that his original removal proceedings were
fundamentally flawed because there was inadequate
evidence to support the determination that he was
inadmissible. Because Tomczyk failed to allege a gross
miscarriage of justice that might permit review of his
underlying order and because he failed to previously exhaust
these arguments, the en banc court concluded that it lacked
jurisdiction to consider his challenge to the underlying order.
COUNSEL
Xavier Gonzales (argued), Las Vegas, Nevada, for
Petitioner.
Walter Manning Evans (argued), Patrick J. Glen, and Bryan
S. Beier, Senior Litigation Counsel; John W. Blakeley,
TOMCZYK V. GARLAND 5
Assistant Director; Jesse Lloyd Busen and Craig A. Newell
Jr., Attorneys; Brian M. Boynton, Acting Assistant Attorney
General; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
Christopher J. Hajec and Gina M. D’Andrea, Immigration
Reform Law Institute, Washington, D.C., for Amicus Curiae
Immigration Reform Law Institute.
ORDER
The respondent’s motion to amend the opinion (Dkt. No.
99) is GRANTED. The Opinion filed on December 14,
2021, is amended as follows:
On slip opinion page 17, lines 6–9, replace with

The Clerk shall file the amended opinion submitted with
this Order.
6 TOMCZYK V. GARLAND
OPINION
CALLAHAN, Circuit Judge:
The primary question presented in Gary Tomczyk’s
petition is whether an inadmissible and previously-deported
noncitizen who is mistakenly waved into the United States
by a border official has illegally reentered the country within
the meaning of 8 U.S.C. § 1231(a)(5). Applying the plain
language of the statute, we hold that an individual’s
inadmissible status renders that individual’s reentry illegal
regardless of the manner of reentry. In doing so, we reaffirm
the holdings of two of our prior published opinions, which
are in turn consistent with the interpretation of § 1231(a)(5)
adopted by the two other circuits to have squarely addressed
this issue. Because Tomczyk was a noncitizen subject to a
previous removal order who illegally reentered the United
States, the Department of Homeland Security (“DHS”) did
not err in reinstating Tomczyk’s removal order.
Tomczyk also asserts that the reinstatement of the
removal order violates due process because it interferes with
his right to remain in the United States with his wife and
because insufficient evidence supported his original removal
order. We find that the former argument lacks merit and that
we lack jurisdiction to consider the latter. Accordingly, we
deny Tomczyk’s petition in part and dismiss it in part.
I
Tomczyk is a Canadian citizen. On June 28, 1990, an
immigration judge ordered that Tomczyk be “excluded and
deported” from the United States under two provisions of a
statute in effect at the time, 8 U.S.C. §§ 1182(a)(20), (23)
(1988). At that time, § 1182(a)(20) stated that noncitizens
who lacked the necessary documents (such as an immigrant
TOMCZYK V. GARLAND 7
visa) “shall be excluded from admission into the United
States,” while § 1182(a)(23) similarly excluded noncitizens,
who like Tomczyk, had certain drug-related convictions or
noncitizens whom immigration officials knew or had reason
to believe were involved in illicit drug trafficking. 8 U.S.C.
§§ 1182(a)(20), (23) (1988). When Tomczyk was deported
to Canada on July 2, 1990, he was given a notice stating in
relevant part that:
If after your deportation is effected, you
desire to reenter the United States within one
year from the date of such deportation, you
must, prior to commencing your travel to this
country, request permission from the
Attorney General to reapply for admission to
the United States. . . .
Your reentry within one year of the date of
your deportation without the express
permission of the Attorney General will
subject you to prosecution as a felon and, if
convicted therefor, you could be sentenced to
imprisonment for not more than two years or
fined not more than $1000, or both.
Tomczyk reentered the United States sometime in July
1991 after he and another individual riding in a van were
allegedly “waved into the country” by an immigration
official at the Canadian border. The record does not indicate
the precise date of his reentry, but the government does not
contest (at least for purposes of adjudicating this petition)
Tomczyk’s assertion that more than a year had passed since
he had been deported.
8 TOMCZYK V. GARLAND
More than 25 years later, Tomczyk was arrested in Las
Vegas, Nevada, for driving under the influence of alcohol.
Immigration and Customs Enforcement officials
subsequently took Tomczyk into custody after discovering
that Tomczyk had previously been deported and did not have
valid immigration documents allowing him to be present in
the United States. DHS then reinstated his prior removal
order under § 1231(a)(5) on the ground that Tomczyk had
illegally reentered the United States after being previously
removed. 1
Tomczyk filed this petition for review of the
reinstatement order. A divided three-judge panel of this
court granted the petition. Tomczyk v. Wilkinson, 987 F.3d
815 (9th Cir. 2021). The majority held that Tomczyk’s
reentry was not illegal within the meaning of § 1231(a)(5)
because he was purportedly waved into the country by a
border official, and that “a noncitizen’s status of
inadmissibility, standing alone,” was insufficient to render
the reentry illegal. Id. at 822. Instead, the majority stated
that “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.” Id. at 825 (alteration
and omission in original). The panel remanded for DHS to
either place Tomczyk in regular removal proceedings or
“determine on a more developed factual record” whether
1
Following the enactment of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”), certain immigration
law terminology changed. For example, “[w]hat was formerly known as
‘deportation’” in 1991 is now referred to as “removal.” Fernandez-
Vargas v. Gonzales, 548 U.S. 30, 33 n.1 (2006).
TOMCZYK V. GARLAND 9
Tomczyk engaged in misconduct sufficient to meet this
standard at the time of his reentry. Id. at 826. Judge Bybee
dissented on the ground that Tomczyk’s inadmissible status
alone rendered Tomczyk’s reentry unlawful, and that the
majority’s contrary holding was inconsistent with our prior
decisions in Tamayo-Tamayo v. Holder, 725 F.3d 950 (9th
Cir. 2013), and Tellez v. Lynch, 839 F.3d 1175 (9th Cir.
2016). Tomczyk, 987 F.3d at 826 (Bybee, J., dissenting). We
subsequently voted to rehear the case en banc. Tomczyk v.
Garland, 2 F.4th 793 (9th Cir. 2021).
II
The government’s ability to reinstate a prior order of
removal is governed by § 1231(a)(5), which provides:
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.
Id. “[R]einstatement only requires proof that (1) petitioner
is an alien, (2) who was subject to a prior removal order, and
(3) who illegally reentered the United States.” Morales-
Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir. 2007) (en
banc). These determinations are made by an immigration
officer, and a noncitizen who has illegally reentered the
country after having previously been removed “has no right
to a hearing before an immigration judge in such
circumstances.” 8 C.F.R. § 241.8(a); see also Morales-
10 TOMCZYK V. GARLAND
Izquierdo, 486 F.3d at 495, 497. We review legal questions
raised in a petition for review of a reinstatement order de
novo and any factual findings for substantial evidence. Ixcot
v. Holder, 646 F.3d 1202, 1206 (9th Cir. 2011). Our
consideration of the petition is limited to the administrative
record and “confirming the agency’s compliance with the
reinstatement regulations.” Garcia de Rincon v. Dep’t of
Homeland Sec., 539 F.3d 1133, 1137 (9th Cir. 2008); see
also 8 U.S.C. § 1252(b)(4)(A).
A
Tomczyk primarily argues that, because a border official
allegedly allowed him to enter the United States in July
1991, his reentry was not illegal within the meaning of
§ 1231(a)(5). “[O]ur inquiry begins with the statutory text,
and ends there as well if the text is unambiguous.” BedRoc
Ltd., LLC v. United States, 541 U.S. 176, 183 (2004).
Because the Immigration and Nationality Act (“INA”) does
not define what it means to have “reentered the United States
illegally,” we look to the language’s ordinary meaning. See
Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752,
1759 (2018); 8 U.S.C. §§ 1101, 1231.
“To determine ordinary meaning, we consider dictionary
definitions.” United States v. Cox, 963 F.3d 915, 920 (9th
Cir. 2020); see also Lamar, Archer & Cofrin, LLP, 138 S.
Ct. at 1759. At the time IIRIRA was enacted, Black’s Law
Dictionary defined “illegal” to mean “[a]gainst or not
authorized by law.” Illegal, Black’s Law Dictionary (6th ed.
1991). The Oxford English Dictionary similarly defined it
to mean “[n]ot legal or lawful; contrary to, or forbidden by,
law.” Illegal, Oxford English Dictionary (2d ed. 1989).
Applying this ordinary and commonly understood meaning
to § 1231(a)(5), a noncitizen therefore reenters the United
States “illegally” when the noncitizen is forbidden by law
TOMCZYK V. GARLAND 11
from gaining admission into the country. See Mendoza v.
Sessions, 891 F.3d 672, 680 (7th Cir. 2018) (determining
that § 1231(a)(5) “is not ambiguous” and that petitioner
illegally reentered where he was inadmissible under
§ 1182(a)(9)(A), regardless of whether he had been waved
into the country).
The question is thus whether Tomczyk was legally
permitted to reenter the United States in July 1991. Whether
a noncitizen is inadmissible is—and was at the time of
Tomczyk’s reentry—governed by § 1182(a), which sets
forth numerous ways in which a noncitizen may be deemed
inadmissible and “ineligible to be admitted to the United
States.” 2 In 1991, one of those grounds of inadmissibility
applied to:
Any alien who —
(A) has been convicted of a violation of, or a
conspiracy to violate, any law or regulation
of a State, the United States, or a foreign
country relating to a controlled substance (as
defined in section 802 of title 21); or
(B) the consular officers or immigration
officers know or have reason to believe is or
has been an illicit trafficker in any such
controlled substance or is or has been a
knowing assistor, abettor, conspirator, or
2
The version of § 1182(a) in effect in 1991 used slightly different
language, stating that inadmissible noncitizens “shall be excluded from
admission into the United States.” 8 U.S.C. § 1182(a) (1988).
12 TOMCZYK V. GARLAND
colluder with others in the illicit trafficking in
any such controlled substance[.]
8 U.S.C. § 1182(a)(23) (1988).
Tomczyk was deported in 1990 in part under this
provision. 3 The record contains no indication that Tomczyk
applied for, let alone received, a waiver of inadmissibility
between his deportation in July 1990 and his reentry in July
1991, and Tomczyk does not argue otherwise. See 8 U.S.C.
§ 1182(d)(3)(B) (1988) (permitting a noncitizen who was
otherwise inadmissible under certain provisions of § 1182(a)
to apply for temporary admission). Nor does Tomczyk cite
any authority suggesting that the INA permitted a border
official to effectively grant such a waiver merely by allowing
the vehicle in which he traveled to cross the border.
Tomczyk’s qualifying conviction thus rendered him
ineligible to be admitted to the United States at the time of
3
Tomczyk was also deported in 1990 on the ground that he was
inadmissible under § 1182(a)(20) (1988), which applied to:
any immigrant who at the time of application for
admission is not in possession of a valid unexpired
immigrant visa, reentry permit, border crossing
identification card, or other valid entry document
required by this chapter, and a valid unexpired
passport, or other suitable travel document, or
document of identity and nationality, if such document
is required under the regulations issued by the
Attorney General [under 8 U.S.C. § 1181(a).]
While the government’s initial respondent’s brief cited this as an
additional ground on which Tomczyk was inadmissible at the time of his
reentry, its subsequently filed supplemental brief relies exclusively on
Tomczyk’s inadmissibility under § 1182(a)(23) (1988). Because we
agree that Tomczyk was inadmissible under § 1182(a)(23), we need not
address whether he was also inadmissible under § 1182(a)(20).
TOMCZYK V. GARLAND 13
his reentry. 8 U.S.C. § 1182(a)(23) (1988). Because the law
forbade Tomczyk from gaining admission into the United
States in July 1991, we hold that his reentry was illegal under
the plain meaning of § 1231(a)(5).
This interpretation is consistent with our prior decisions
addressing this same issue. In Tamayo-Tamayo v. Holder,
725 F.3d 950 (9th Cir. 2013), a previously removed
petitioner reentered the United States after presenting an
expired permanent resident card to a border official. Id.at 951–52. The government then sought to reinstate the
petitioner’s removal order under § 1231(a)(5). Id. at 952.
We rejected the petitioner’s argument that his reentry had
been lawful because a border official waved him into the
country. We determined that when the petitioner reentered
the country, “he lacked valid documentation that permitted
him to enter. Accordingly, he was inadmissible under
§ 1182(a)(7)(A)(i)(I), as an alien ‘who is not in possession
of a valid unexpired [authorization document],’ and his entry
was illegal.” Id. at 952 (alteration in original) (quoting
8 U.S.C. § 1182(a)(7)(A)(i)(I)). We concluded that
“Petitioner’s substantively illegal reentry met the
requirement in § 1231(a)(5) that he had ‘reentered the
United States illegally,’ notwithstanding the fact that he
tricked the border official into allowing him physically to
enter.” Id. at 953 (emphasis added) (quoting 8 U.S.C.
§ 1231(a)(5)).
We reached the same conclusion in Tellez v. Lynch,
839 F.3d 1175 (9th Cir. 2016). There, the petitioner
attempted to enter the United States without a “valid entry
document” and was issued an expedited removal order and
removed. Id. at 1177. When the petitioner attempted to
reenter the country the following week, “[s]he ‘dressed up in
a nice, pretty dress,’ and ‘smile[d] at the immigration
14 TOMCZYK V. GARLAND
officer’ from the passenger seat of a car,” and this time an
immigration officer waved the car through the checkpoint.
Id. (second alteration in original). In challenging the
government’s reinstatement of her removal order, Tellez
claimed “that she did not reenter the United States illegally
. . . because she presented herself at the border and was
waved through without question.” Id. at 1178. We rejected
this argument, noting that “a successful entry can still be an
illegal entry.” Id. We also characterized Tamayo-Tamayo
as “holding . . . that an entry was illegal because petitioner
‘lacked valid documentation that permitted [the petitioner]
to enter.’” Id. at 1178–79 (quoting Tamayo-Tamayo,
725 F.3d at 952) (emphasis added). We concluded that “[a]
pretty dress and charming smile are not substitutes for a visa.
Her reentry was illegal.” Id. at 1179; see also 8 U.S.C.
§ 1182(a)(7)(A)(i)(I) (stating that noncitizens who, among
other things, are “not in possession of a valid unexpired
immigrant visa” are inadmissible).
The two other circuits to have addressed this question
also agree with our precedent. In Cordova-Soto v. Holder,
659 F.3d 1029 (10th Cir. 2011)—which we cited in Tamayo-
Tamayo, 725 F.3d at 953—the Tenth Circuit noted that the
petitioner’s failure to seek the Attorney General’s
authorization to reenter (as she was required to do under the
terms of her prior order of removal) rendered her
inadmissible under § 1182(a)(9)(A)(ii). Cordova-Soto,
659 F.3d at 1035. The court held that inadmissibility under
§ 1182(a) alone was sufficient to render her reentry illegal.
Id. (“Because she could not have entered the United States
legally at that time, her reentry was illegal . . . .”).
Similarly, in Mendoza v. Sessions, the Seventh Circuit
held that a petitioner who had reentered the United States
after being waved across the border by two officers had
TOMCZYK V. GARLAND 15
nevertheless reentered the country illegally. 891 F.3d at 674,
680. There, an order prohibited the petitioner “from
returning to the United States for five years unless he
obtained permission from the Attorney General.” Id. at 674.
The court held that the petitioner’s reentry violated “at least
two laws”—8 U.S.C. § 1326(a) and § 1182(a)(9)(A)—and
therefore that the reentry was illegal under the plain meaning
of § 1231(a)(5). Id. at 680. The court further emphasized
that whether a noncitizen “engaged in some act of
deception” during the noncitizen’s reentry was “not relevant
to the core analysis” under § 1231(a)(5), and that “Congress
could not have intended for such a reentry to be considered
lawful merely because a border inspector mistakenly waved
the violator into the country.” Id.
At oral argument on rehearing, Tomczyk’s counsel
asserted that § 1231(a)(5)’s reference to an individual who
has “reentered the United States illegally” is commonly
understood to be limited to “a person who is subject to
criminal prosecution who enters unlawfully,” in the sense
that the act of reentry involved criminal conduct. We
disagree. Nothing in the text of § 1231(a)(5) suggests that
this provision is limited to instances where a noncitizen
committed a criminal violation. Moreover, Tomczyk
provides no support for his suggestion that reentering
“illegally” is commonly understood to imply the presence of
criminal conduct. Tomczyk’s characterization is belied by
the dictionary definitions set forth above, as well as our prior
opinions and those of our sister circuits interpreting and
applying this unambiguous language.
Tomczyk also contends that his reentry was not illegal
because, at the time, Canadian citizens were not required to
provide border officials with a visa or passport to enter the
United States for a temporary visit, and Tomczyk claims he
16 TOMCZYK V. GARLAND
did not intend to permanently remain in the country at the
time of his reentry. 8 C.F.R. § 212.1(a) (1991). This appears
to be a response to the claim that Tomczyk remained
inadmissible in July 1991 because he lacked valid entry
documents under § 1182(a)(20) (1988). But the government
does not solely rely on this ground of inadmissibility in
arguing his reentry was illegal. See supra n.3. Instead, the
government correctly notes that Tomczyk’s status as a
noncitizen with a drug conviction rendered him inadmissible
regardless of whether he had entry documentation or how
long he initially intended to stay in the country. 8 U.S.C.
§ 1182(a)(23) (1988). 4
In July 1991, Tomczyk lacked legal authorization to
enter the United States. His reentry into the country while
inadmissible was thus illegal as a matter of law within the
meaning of § 1231(a)(5), notwithstanding the fact that a
border official mistakenly waved him into the country. DHS
did not err in reinstating his removal order on this basis.
B
Tomczyk next argues that the government should be
estopped from claiming that he reentered the United States
illegally because the government purportedly told him that
he was only barred from returning to the country for one year
following his deportation. Tomczyk bases this contention
on the notice he received from the government at the time of
his deportation, which stated in relevant part that if Tomczyk
4
Tomczyk also argues that he was not inadmissible under
§ 1182(a)(23) (1988) at the time of his reentry because the government
never proved that he had a qualifying conviction in his original removal
proceedings. This amounts to a collateral attack on his original removal
order and, for the reasons discussed below in Part III, we lack jurisdiction
over this claim.
TOMCZYK V. GARLAND 17
wished to return to the United States “within one year from
the date of such deportation, [he] must, prior to commencing
[his] travel to this country, request permission from the
Attorney General to reapply for admission to the United
States.” The notice further stated that, if Tomczyk attempted
to reenter without advance permission during this period, he
would be subject “to prosecution as a felon and, if convicted
therefor, [he] could be sentenced to imprisonment for not
more than two years or fined not more than $1000, or both.”
Tomczyk claims that he chose to wait more than a year
before reentering because he interpreted this notice to mean
that he would then be free to reenter the United States at that
time.
A party seeking to assert estoppel against the federal
government must show that the government engaged in
“affirmative misconduct going beyond mere negligence,”
and even then, estoppel will only apply “where the
government’s wrongful act will cause a serious injustice, and
the public’s interest will not suffer undue damage by
imposition of the liability.” Mukherjee v. INS, 793 F.2d
1006, 1008–09 (9th Cir. 1986) (internal citations and
quotation marks omitted). Further, “estoppel against the
government is unavailable where petitioners have not lost
any rights to which they were entitled.” Sulit v. Schiltgen,
213 F.3d 449, 454 (9th Cir. 2000).
The record contains no indication that the government
engaged in any misconduct. The notice accurately warned
Tomczyk that he would face criminal prosecution if he
attempted to reenter within one year without the advance
permission of the Attorney General. 8 U.S.C.
§§ 1182(a)(16), 1326(a) (1988). Whether or not the notice
would have affected the applicability of criminal sanctions
(a matter not before the Court), it did not address the civil
18 TOMCZYK V. GARLAND
and administrative requirements Tomczyk would have to
meet to lawfully re-enter the United States. Rather, having
previously been deemed inadmissible under § 1182(a)(23)
(1988), Tomczyk had no right to reenter the United States in
July 1991 or any time thereafter. See 8 U.S.C. § 1182(a)(23)
(1988). Therefore, neither the issuance of the notice nor the
border official’s decision to wave Tomczyk into the country
deprived Tomczyk of any rights to which he otherwise
would have been entitled. Accordingly, DHS is not estopped
from seeking to reinstate Tomczyk’s removal order.
C
Tomczyk also contends that § 1231(a)(5), which was
enacted as part of IIRIRA and did not become effective until
1997, cannot be applied retroactively against him. See
Fernandez-Vargas, 548 U.S. at 33–36 (describing IIRIRA’s
changes to the pre-existing reinstatement procedures).
Tomczyk acknowledges that the Supreme Court has held
that § 1231(a)(5) applies to noncitizens who reentered before
IIRIRA’s effective date and remained in the country after
that date. Id. at 33, 44. Nevertheless, Tomczyk asserts an
exception based on our decision in Ixcot v. Holder, 646 F.3d
1202 (9th Cir. 2011), which held that § 1231(a)(5) did not
apply retroactively to a noncitizen who “applied for
immigration relief prior to IIRIRA’s effective date,” and
thus had a vested right to the adjudication of that application
on its merits. 646 F.3d at 1213. Tomczyk contends that his
reentry with inspection at a border checkpoint in July 1991
“preserved for himself the ability at some time to apply for
adjustment of status,” and on this basis he is eligible to apply
for relief from removal under Ixcot.
Tomczyk’s claim lacks merit. Even assuming he did
reenter with inspection in July 1991—a fact which the
government does not concede—such a reentry was not the
TOMCZYK V. GARLAND 19
equivalent of applying for immigration relief. Ixcot requires
that the noncitizen have “affirmatively” acted prior to the
enactment of IIRIRA “to change his legal status” such that
“his expectation of relief . . . became a ‘vested’ right that
could not be [retroactively] ‘impair[ed].’” Ortega v. Holder,
747 F.3d 1133, 1134 (9th Cir. 2014) (second alteration in
original) (quoting Ixcot, 646 F.3d at 1213). Tomczyk admits
that he did not apply for an adjustment of status prior to
IIRIRA’s effective date, and we find that merely being
eligible to apply for such relief in the future is insufficient.
See Fernandez-Vargas, 548 U.S. at 44 n.10 (determining
that the creation of a vested right required the noncitizen “to
take some action that would elevate [his claim for relief]
above the level of hope”). Because Tomczyk had “no
pending application at the time the law came into effect,”
§ 1231(a)(5) applies retroactively to him. Ortega, 747 F.3d
at 1135.
III
Finally, Tomczyk asserts that DHS’s reinstatement of
the removal order violated his due process rights in two
ways.
First, he contends the reinstatement of his removal order
“arbitrarily denied [Tomczyk] the ability to remain in the
United States with his United States Citizen wife, thus
depriving him of family unity.” We have previously rejected
this argument, holding that the lawful denial of immigration
relief does not violate any of a noncitizen’s or a noncitizen’s
family’s “substantive rights protected by the Due Process
Clause.” Morales-Izquierdo v. Dep’t of Homeland Sec.,
600 F.3d 1076, 1091 (9th Cir. 2010), overruled in part on
other grounds by Garfias-Rodriguez v. Holder, 702 F.3d
504, 516 (9th Cir. 2012) (en banc); see also Morales-
Izquierdo, 486 F.3d at 497 (reinstating a removal order “does
20 TOMCZYK V. GARLAND
not offend due process because reinstatement of a prior order
does not change the alien’s rights or remedies”).
Second, Tomczyk argues that his original removal
proceedings were fundamentally flawed because there was
inadequate evidence to support the immigration judge’s
determination that he was inadmissible under
§§ 1182(a)(20) and (23) (1988). Tomczyk claims that the
immigration judge overlooked the fact that, as a Canadian
citizen, he was not required to have a visa to enter the
country and thus was not inadmissible under § 1182(a)(20)
(1988), and that the government failed to introduce any
conviction documents proving he had the type of drug
conviction set forth in § 1182(a)(23) (1988).
A petitioner’s original removal order “is not subject to
being reopened or reviewed” in reinstatement proceedings
unless “the petitioner can demonstrate a ‘gross miscarriage
of justice’ in the prior proceedings.” 8 U.S.C. § 1231(a)(5);
Garcia de Rincon, 539 F.3d at 1138. Tomczyk has not
shown—nor do his briefs even expressly argue—that a gross
miscarriage of justice occurred in his original removal
proceedings. Tomczyk does not argue that he was prevented
from making any of the arguments he currently raises in
those proceedings, nor did he appeal his initial deportation
order. Because Tomczyk fails to allege a gross miscarriage
of justice and because he failed to previously exhaust these
arguments, we lack jurisdiction to consider his challenge to
his June 1990 removal order, and this portion of Tomczyk’s
petition is dismissed. 8 U.S.C. §§ 1231(a)(5), 1252(d)(1).
IV
For the reasons set forth above, Tomczyk’s petition for
review is DISMISSED in part and DENIED in part.