For more than 100 years, courts have employed a consistent definition of what it means to enter the country.
As stated by Judge Johnnie Rawlinson for the 9th Circuit Court of Appeals in a 2001 case, “Since 1908, federal courts have recognized that ‘entering’ the United States requires more than mere physical presence within the country.” To enter, an alien must be able to physically advance past the border and travel free of “official restraint.”
It’s an important definition because, among other things, the Immigration and Nationality Act provides heightened penalties for unlawful reentry. For a “reentry” to exist, there must have been a previous “entry.”
In an immigration case decided last month, Rawlinson’s colleague Judge Alex Kozinski looked not to precedent for the applicable definition, but rather to “stacks of dictionaries” and “common sense.” “Enter” simply means “to come or go into,” he concluded, citing The American Heritage Dictionary of the English Language.
Therefore, Kozinski wrote in an Oct. 24 majority opinion, an alien who was detained at a border-crossing checkpoint in California and immediately returned to Mexico had “entered” the United States on that occasion. Consequently, as held in Tellez vs. Lynch, the alien’s subsequent entry qualified as a reentry. The Department of Homeland Security’s order of expedited removal of the alien — a 16-year U.S. resident seeking permanent resident status— was upheld.
The majority opinion, joined by Judges Jay Bybee and Donald Walter, candidly acknowledged its holding appeared contrary to the precedent that narrowly defined “reentry.” But, for two reasons, Kozinki contended the decision “does not disturb this longstanding common-law definition.”
First, the narrower definition had applied to criminal provisions of the INA, whereas the Tellez case was a civil matter.
Second, though not expressly stated in the statute or the legislative history, Congress had intended to “sweep broadly” and wanted “entry” to be more broadly defined when enacting a 1996 amendment to the INA that addressed the process for expedited removals.
Critics may take issue with those justifications.
Usually, a term that’s used multiple times in a statute will have the same definition in all instances. Also, Congress is often expected to know how courts have interpreted statutory terms.
So, it wouldn’t be surprising if the opinion gets an en banc review by all active 9th Circuit judges. Kozinski’s obvious pleasure with the result — twice noting, without obvious legal relevance, that Tellez wore a “pretty dress” at the time of her illegal reentry — might also drive some of his colleagues to take a closer look at the holding.
(Originally posted at Medium.)