In the

United States Court of Appeals

For the Seventh Circuit

No. 16-3568

MIGUEL MACIAS MENDOZA,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney

General of the United States,

Respondent.

On Petition for Review of a Final Removal Order of

the U.S. Department of Homeland Security.

A036 168 559. 

ARGUED NOVEMBER 28, 2017 — DECIDED MAY 31, 2018

Before BAUER, ROVNER, and SYKES, Circuit Judges.

ROVNER, Circuit Judge. In 1995, Miguel Macias Mendoza

(“Macias”) reentered the United States after having been

removed only weeks earlier. When he came to the attention of

the government more than twenty years later, a deportation

officerforU.S.Immigrationand Customs Enforcement (“ICE”)
2 No. 16-3568

determined that Macias had illegally reentered the United

States and was subject to reinstatement of the prior removal

order. Macias raises a purely legal challenge to this conclusion,

contending that, because his reentry was “procedurally

regular,” he was not subject to reinstatement but was instead

entitled to a full hearing before an immigration judge. We deny

the petition for review.

I.

Macias, a native and citizen of Mexico, entered the United

States with his family as a lawful permanent resident in 1976

at the age of six. In 1990, he was convicted in state court of

attempted aggravated criminal sexual assault, aggravated

battery, and burglary. While in prison for those crimes, he was

also convicted of possession of a weapon by a felon. The

Immigration and Naturalization Service (“INS”) instituted

removal proceedings against him while he was in prison,

asserting that his convictions qualified as crimes involving

moral turpitude, rendering him removable.1

In 1993, an Immigration Judge ordered Macias removed

from the United States to Mexico. The order also prohibited

Macias from returning to the United States for five years unless

1

 Congress transferred the functions of the former INS to the Department

of Homeland Security (“DHS”) on March 1, 2003. The transfer does not

affect any legal issue in the case, and the DHS did not exist during any of

the original administrative proceedings. See United States v. Suarez, 664 F.3d

655, 656 n.1 (7th Cir. 2011). We will use the current term, “removable”

rather than the word “deportable,” which was in use at the time of Macias’s

original proceedings. See Guevara v. Gonzales, 472 F.3d 972, 976 (7th Cir.

2007) (“deportable” is synonymous with “removable”).
No. 16-3568 3

he obtained permission from the AttorneyGeneral. See 8 U.S.C.

§ 1182(a)(9)(A) (providing for a five-year period of inadmissibility unless the Attorney General has consented to the alien’s

reapplying for admission).2 The Board of ImmigrationAppeals

(“BIA”) upheld the order, and in March 1995, Macias was

removed to Mexico. 

Macias did not remain there for long. The record contains

no corroboration of when, how or where he crossed the border,

but according to Macias, in April 1995, within weeks of his

removal, he reentered the United States near Reynosa, Mexico.

Macias returned to the United States purportedly to care for his

young son who had been seriously injured in a car accident.

Instead of seeking the consent of the Attorney General, he

asserts that he approached a border inspection point in Texas

prepared to offer his name and Social Security number. He

claims thathe encountered two border officers who waved him

into the United States without questioning him or asking to see

travel documents, instead greeting him with a friendly,

“Welcome home.” He returned to Chicago and remained there

for twenty-one years. He made no attempt during that time to

bring his immigration status into compliance with the law.

In July 2016, Macias was arrested and charged with

aggravated driving under the influence of alcohol. While that

2 At the time Macias was first removed in 1995, the statute then in effect

required a previously removed alien to seek permission for readmission

from the Attorney General. See 8 U.S.C. § 1182(a)(6)(B) (1995). The current

version of the statute and the accompanying regulations are substantively

identical to the law in effect in 1995. See 8 U.S.C. § 1182(a)(9)(A) (2013). We

will refer to the current versions of the relevant statutes herein.
4 No. 16-3568

charge was pending, DHS served him with a Notice of Intent/Decision to Reinstate Prior Order of Removal. Citing

8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8 as authority, the

Notice apprised Macias that DHS intendedto reinstate the 1993

order that authorized his 1995 removal because Macias had

illegally reentered the United States on an unknown date at an

unknown place. The Notice provided that he could contest the

determination that he illegally reentered and was subject to

removal by reinstatement by providing an oral or written

statement, but that he had no right to a hearing before an

immigration judge. In a letter issued a few days later, ICE

again invited Macias or his representative to make an oral or

written statement in opposition to the contemplated reinstatement. 

Macias opted for a written statement submitted by counsel.

In the statement, counsel argued that Macias’s reentry into the

United States was lawful and thus did not meet the standard

for reinstatement under section 1231(a)(5). In particular,

Macias presented himself forinspectionat a border checkpoint,

did not deceive or attempt to deceive anyone, and was waved

in by border guards. Counsel asserted that under the accompanying regulations and in light of Matter of Quilantan, 25 I & N

Dec. 285 (BIA 2010),Macias’s “procedurally regular” entry was

lawful. Counsel noted that the Seventh Circuit had yet to rule

on whether a procedurally regular entry could constitute an

unlawful one for purposes of reinstatement, but conceded that

other circuits had concluded that procedurally regular but

substantivelyunlawful entries were unlawfulforreinstatement

purposes. Those cases were distinguishable, counsel asserted,

because in each case the alien had engaged in some form of
No. 16-3568 5

fraud during the reentry process. Counsel also asked that ICE

exercise prosecutorial discretion to allow Macias to remain in

the country, asserting that he is “not an enforcement priority

given the compelling and exceptional factors in his case, and

his eligibility for other relief.” Administrative Record at 63.

An ICE deportation officer then issued a decision rejecting

Macias’s arguments and reinstating the prior order of removal.

The deportation officer found that Quilantan interpreted the

word “admitted” as the term is used for adjustment of status,

and in that context, the word denoted only procedural regularity. See 8 U.S.C. § 1255 (providing for adjustment of status of

nonimmigrant to that of person admitted for permanent

residence). Compliance with substantive legal requirements

was not, therefore, required to be lawfully admitted for

adjustment of status. But in the case of reentry after having

been previously removed, the deportation officer concluded

that substantive compliance was necessary to avoid “illegal

reentry” under section 1231(a)(5). The deportation officer cited

Cordova-Soto v. Holder, 659 F.3d 1029 (10th Cir. 2011), in

support, noting that the factual circumstances were very

similar, and that the Tenth Circuit had concluded that procedural regularity was not sufficient for lawful reentry. The

deportation officer found that Macias had never sought the

permission of the Attorney General to return, and thus his

reentry was unlawful and the prior order of deportation would

be reinstated. Finally, prosecutorial discretion was denied due

to the serious nature of Macias’s past crimes, his admitted

membership in the Latin Kings, and the nature of his recent

arrest for aggravated driving under the influence. Macias
6 No. 16-3568

petitions for review of the decision to reinstate the prior order

of deportation.

II.

We review de novo any questions of law regarding the

interpretationof the Immigrationand Nationality Act (“INA”).

Borrego v. Mukasey, 539 F.3d 689, 691 (7th Cir. 2008). “If

Congress has directly spoken to the precise question at issue,

then a court must follow that clear guidance.” Cece v. Holder,

733 F.3d 662, 669 (7th Cir. 2013) (citing Chevron, U.S.A., Inc. v.

Natural Resources Def. Council, Inc., 467 U.S. 837, 842–43 (1984)).

But if a statute is silent or ambiguous, the court must defer to

authoritative interpretations of the law by the applicable

agency. Cece, 733 F.3d at 669; Chevron, 467 U.S. at 844. In the

context of interpreting ambiguous provisions in the INA, this

typically means “giving Chevron deference to the Board's

reasonable interpretation set forth in precedential opinions

interpreting the statute.” Cece, 733 F.3d at 668. 

The government primarily asserts that the statute is not

ambiguous and that the plain language controls the outcome

here. But the government also asserts that, in the absence of

Board authority addressing the precise question at issue here,

this court should defer to the statutory interpretation of the

deportation officer who drafted the Notice of Reinstatement of

Removal Order in this case. The government cites Skidmore v.

Swift, 323 U.S. 134, 140 (1944), and Bailey v. Pregis Innovative

Packaging, Inc., 600 F.3d 748, 750–51 (7th Cir. 2010), in support.

Those cases provide only that we may resort for guidance to

agency opinion letters and interpretations by an agency

administrator to the extent that those opinions have the
No. 16-3568 7

“power to persuade.” Skidmore, 323 U.S. at 140; Bailey, 600 F.3d

at 750–51. In determining whether such an opinion letter has

the power to persuade, we typically examine “the thoroughness evident in its consideration, the validity of its reasoning,

[and] its consistency with earlier and later pronouncements[.]”

Skidmore, 323 U.S. at 140; Arobelidze v. Holder, 653 F.3d 513, 520

(7th Cir. 2011). Although we are sometimes willing to grant

Skidmore deference to non-precedential decisions by single

members of the Board of Immigration Appeals, the government has not cited and we have not been able to find any

instance of providing Skidmore deference to a thinly-reasoned

decision by a single deportation officer, and we decline to do

so here. Sanchez v. Holder, 757 F.3d 712, 717 (7th Cir. 2014)

(finding that a non-precedential decision by a single member

of the Board is entitled to respect but only to the extent that it

has the power to persuade); Arobelidze, 653 F.3d at 520 (same).

And as will be apparent below, there is no need to resort to the

interpretation offered by the deportation officer.

We begin with the statutory language:

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.
8 No. 16-3568

8 U.S.C. § 1231(a)(5). Macias does not dispute that he reentered

after he was previously removed and that he did so during the

five-year inadmissibility period without seeking the requisite

consent from the Attorney General. The only point of dispute

in interpreting the statute is whether Macias reentered

“illegally.” 

That term is not defined in the statute, and so Macias

contends that we should turn to the implementing regulation:

(a) Applicability. An alien who illegally reenters the

United States after having been removed, or having

departed voluntarily, while under an order of

exclusion, deportation, or removal shall be removed

from the United States by reinstating the prior order.

The alien has no right to a hearing before an immigration judge in such circumstances. In establishing

whether an alien is subject to this section, the immigration officer shall determine the following:

(1) Whether the alien has been subject to a prior

order of removal. ...

(2) The identity of the alien, i.e., whether the alien is

in fact an alien who was previously removed ...

(3) Whether the alien unlawfully reentered the

United States. In making this determination, the

officer shall consider all relevant evidence,including

statements made by the alien and any evidence in

the alien's possession. The immigration officer shall

attempt to verify an alien's claim, if any, that he or
No. 16-3568 9

she was lawfully admitted, which shall include a

check of Service data systems available to the officer.

8 C.F.R. § 241.8. Macias specifically cites the last sentence of

subsection (a)(3) in support of his argument that a procedurally regular entry is not unlawful, focusing on the directive to

determine whether the alien was “lawfully admitted.” 

In particular, Macias contends that the words “admitted”

and “admission” have well-settled meanings in immigration

law. Section 1101(a)(13)(A) of the Act provides:

The terms “admission” and “admitted” mean, with

respect to an alien, the lawful entry of the alien into

the United States after inspection and authorization

by an immigration officer.

Macias argues that Congress therefore expressly connected the

concept of “admission” with “lawful entry.” Macias presented

himself for inspection and was authorized to enter by the two

border guards who waved him into the country in 1995, he

argues, and therefore his entry was lawful. And after all, he

argues, there would be no need for an immigration officer to

consider statements made by the alien or any evidence in the

alien's possession (as provided in the regulation) if a simple

check of DHS data systems could answer the question of

lawfulness. But the regulation does not establish a definition

for “illegal” reentry or a substantive standard for illegality in

the reinstatement context. The regulation simply instructs DHS

officials on how to go about collecting information needed to

make the reinstatement determination. Nothing in the regulation renders the word “illegally” ambiguous. Moreover,
10 No. 16-3568

Macias goes a step too far in trying to equate “admitted” with

lawfully admitted.

Macias turns to Matter of Quilantan, 25 I & N Dec. 285 (BIA

2010), in support. That case involved a citizen of Mexico who

entered the United States without a visa. She approached the

border as a passenger in a car, and although an immigration

inspector asked the driver whether he was an American

citizen, he did not ask Quilantan any questions. The inspector

then waved the car through. Quilantan later married a U.S.

citizen and applied for adjustment of status under 8 U.S.C.

§ 1255. That provision allows aliens who were “inspected and

admitted or paroled into the United States” to apply for

adjustment of status.DHS insteadchargedher with removability, and an Immigration Judge found that she was statutorily

ineligible for adjustment because she had not been “admitted”

to the United States within the meaning of

section 1101(a)(13)(A) of the INA. The Immigration Judge

concluded that a procedurally regular admission was insufficient to meet that standard. 

Quilantan petitioned for review. The Board noted that, over

the years, Congress had loosened the requirements for applicants for adjustment of status, dropping the requirement of

lawful admission and maintenance of non-immigrant status,

and eventually requiring only inspection and admission or

parole into the United States. That meant that, as of 1980, “as

long as an alien’s entry into the United States as a nonimmigrant was procedurally proper (i.e., the alien underwent an

inspection by an immigration officer, who subsequently

admitted the alien), the alien could seek adjustment of status

under” section 1255. Quilantan, 25 I & N Dec. at 289–90. The
No. 16-3568 11

Board was thus confronted only with the question of whether

that interpretation remained valid after the enactment of the

Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 (“IIRIRA”). The Board held that, “by themselves, the

terms ‘admitted’ and ‘admission,’ as defined in section

101(a)(13)(A) of the Act, continue to denote procedural

regularity for purposes of adjustment of status, rather than

compliance withsubstantive legalrequirements.”Quilantan, 25

I & N Dec. at 290. Because she presented herself for inspection,

made no knowing false claims to citizenship, was asked no

questions by immigration authorities and was allowed into the

country, Quilantan was thus eligible for adjustment of status.

By its own terms, Quilantan defined “admission” and

“admitted” only when used “by themselves” for “purposes of

adjustment of status” under section 1255. 25 I & N Dec. at 290.

Nothing in Quilantan renders the word “illegally” ambiguous

in section 1231(a)(5), which applies not to adjustment of status

but to reinstatement of removal orders for persons previously

removed. By reentering the United States without the requisite

permission after having been previously removed, Macias

violated the predecessor version of section 1182(a)(9)(A). The

government asserts that Macias thus reentered the United

States illegally within the plain meaning of section 1231(a)(5).

That is, his reentry was substantively illegal even if it was

arguably procedurally regular. Even Macias concedes that,

“[i]n common parlance, Macias’s reentry might very well be

described as ‘illegal.’” Petitioner’s Opening Brief at 2. 

The government cites the Tenth Circuit’s opinion in

Cordova-Soto in support of its position that Macias’s reentry

without the required permission from the Attorney General
12 No. 16-3568

was illegal. Like Macias, Cordova-Soto lived in the United

States as a lawful permanent resident when she was a child.

She later committed two crimes involving moral turpitude.

Like Macias, she was removed from the United States with a

warning not to return for (in her case) ten years without

obtaining special permission from the Attorney General. And

like Macias, she returned anyway, without the requisite

permission. She came through the border as one of three

passengers in a taxi. The border inspector asked all of the

passengers for identification. While Cordova-Soto “pretended

to look for ID,” the inspector moved onto other passengers,

inspected the trunk, and then waved the car into the United

States. 659 F.3d at 1030–31. 

Cordova-Soto challenged the DHS determination that she

was subject to reinstatement of the prior order of removal,

claiming, in part, that her reentry was not illegal because it was

procedurally regular. Like Macias, Cordova-Soto relied on

Quilantan. The Tenth Circuit rejected Cordova-Soto’s argument, noting that Quilantan interpreted the term “admitted” as

it is used in section 1255(a), that the holding was limited to the

terms “admitted” and “admission” when used by themselves,

and that Quilantan focused on the long history of requiring

only a procedurally regular entry for eligibility for adjustment

of status. In contrast, Congress in section 1231(a)(5) did not use

the term “admitted” by itself or otherwise. Congress: 

chose instead to hinge eligibility for reinstatement

on illegal reentry, the plain meaning of which is a

reentry in violation of the law. Nor do we believe

that the BIA’s unusual construction of “lawful

entry” in the definition of “admitted” in
No. 16-3568 13

§ 1101(a)(13)(A)—which ignores the plain meaning

of that term—reasonably extends beyond its use in

that definition.

Cordova-Soto, 659 F.3d at 1034. The court thus distinguished

“lawful entry” for purposes of determining whether an alien

has been admitted under section 1255(a), from illegal reentry

by a previously removed alien, which is at issue in section

1231(a)(5).

The court also noted that an alien who has previously been

removed is subject to criminal penalties if she thereafter

“enters, attempts to enter, or is at any time found in, the United

States,” unless the Attorney General has expressly consented

in advance to her applying for readmission, or she establishes

that she was not required to obtain the Attorney General’s

advance consent. See 8 U.S.C. § 1326(a). In short:

We cannot conclude that a previously removed

alien’s procedurally regular entry could be, at the

same time, a legal reentry for purposes of

§ 1231(a)(5),therebyprecludingreinstatement of her

removal order, yet also an illegal reentry subjecting

her to criminal prosecution under § 1326(a).

Cordova-Soto, 659 F.3d at 1034. 

We find the reasoning of our sister circuit persuasive and

see no reason to depart from it. Although Congress has made

it progressively easier for some aliens to apply for adjustment

of status under section 1255, lawmakers have also chosen to

make it easier under section 1231(a)(5) to reinstate prior

removal orders against those who have illegally reentered the
14 No. 16-3568

United States after having previously been removed. See

Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33–34 (2006) (describing the history of the reinstatement provisions); MoralesIzquierdo v. Gonzales, 486 F.3d 484, 494 (9th Cir. 2007) (noting

that Congress' purpose behind IIRIRA was to enable the

prompt admission of those who are entitled to be admitted, the

prompt exclusion or removal of those who are not so entitled,

and the clear distinction between these categories). The

enactment of IIRIRA, effective April 1, 1997, has provided for

the broadest use of reinstatement, applying to all illegal

reentrants, and explicitly insulating removal orders from

review, while also generally foreclosing discretionary relief

from the terms of the reinstatement order. Fernandez-Vargas,

548 U.S. at 34–35. 

Other circuits have also treated a reentry after removal and

without the Attorney General’s consent (during the time

period that consent is required) as an illegal reentry for the

purposes of reinstatement under section 1231(a)(5). See e.g.,

Anderson v. Napolitano, 611 F.3d 275, 278–79 (5th Cir. 2010)

(previously removed alien who reentered under new, married

name and received passport stamp but did not obtain necessary permission from Attorney General, reentered unlawfully

and was subject to reinstatement); Morales-Izquierdo, 486 F.3d

at 498 (previously removed alien who returned to the United

States unnoticed without obtaining required permission from

Attorney General illegally reentered for reinstatement purposes); Cordova-Soto, 659 F.3dat 1035 (collecting cases). In some

of these cases, the alien either conceded that the reentry

without the permission of the Attorney General was unlawful

or the alien engaged in some act of deception during the
No. 16-3568 15

purportedly “procedurally regular” reentry. For example, as

we noted above, Cordova-Soto pretended to search for

identification as the border officer inspected the vehicle and its

other occupants. Anderson entered under a new (and misleading even though legitimate) married name. These small

deceptions are not relevant to the core analysis because it is not

procedural regularity that is at issue; rather it is substantive

illegality that subjected each person to reinstatement. 

In fact, prior to deciding Cordova-Soto, the Tenth Circuit

foundaprocedurally regular entry to be unlawful for reinstatement purposes, although the alien had not raised the issue of

procedural regularity. See Lorenzo v. Mukasey, 508 F.3d 1278,

1280–83 (10th Cir. 2007) (alien who passed through an official

point of entry in the back seat of a car, without immigration

officials examining or questioning her documentation, entered

unlawfully for reinstatement purposes). The Tenth Circuit

acknowledged that Lorenzo had not raised the statutory

argument regarding procedurally regular entry on which

Cordova-Soto relied, but the court nonetheless favorably cited

and relied on Lorenzo in concluding that Cordova-Soto’s

reentry was unlawful. Cordova-Soto, 659 F.3d at 1035. 

In sum, the statute providing for reinstatement for aliens

who have reentered “illegally” after previously having been

removed is not ambiguous. A person who reenters without the

consent of the Attorney General during the required period

violates at least two laws and therefore reenters illegally. See

8 U.S.C. § 1326(a) and 8 U.S.C. § 1182(a)(9)(A). Indeed, section

1326(a) subjects the violator to significant criminal penalties,

and Congress could not have intended for such a reentry to be

considered lawful merely because a border inspector mistak-
16 No. 16-3568

enly waved the violator into the country. Nothing in the

accompanying regulation is contrary to that plain-language

interpretation. Finally, we see no reason to depart from the

Tenth Circuit’s well-reasoned decision.

PETITION DENIED.