### In the



# United States Court of Appeals For the Seventh Circuit

No. 16-3568

M I GUE L M ACI AS M E ND OZA , Petitioner,

v.

J E F F E RS ON B. S E S SI ON S 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.

A RGUE D N OV E MB E R 28, 2017

— D E CID E D M A Y 31, 2018

Before B AUE R

, R OVN E R

, and SYKE S

, Circuit Judges

. R OVN E R , Circ uit Judge. In 1 995, M iguel Mac ias Mendoza (“Macias”) re e nte red the United States after h aving been
remov ed only w eeks earlier

. When he came to the attention of the g ov ernment more than tw enty years l ater , a deporta tion
o ffi cer fo r U. S

. I mmi g r a ti o n an d Customs Enforcement (“ICE”)2 No. 16-3568
determined that Macias had illegally reentered the United States and w as subject to reinstatement of the pr ior remov al order

. Macias raises a purely legal challenge to this conclusion, contending that, because his reentry w a s “procedurally regular ,” he w as not subject to reinstatement but w as instead entitled to a full hearing before an immigration judge. W e deny the petition for review

. I. Macias, a native and citizen of Mexico, entered the United States with his family as a lawful permanent r e s ide nt in 1976
a t the a ge of six. In 1990, he w as convicted in state court of attempted aggrav ated criminal sexual a ssault, aggra v a ted battery , and burglary

. While in p rison for those crimes, he w as also convicted of possession of a w eapon by a felon. The Immigration and Natur alization Service (“INS”) instituted
remov al proceedings against him while he w as in p rison, asserting that his convictions qualified as crimes inv olving moral turpitude, rendering him remov able. 1
In 1 993, an Immigration Judge ordered Macias remov ed from the United S tates to Mexico. The order also prohibited Macias from returning to the United States for five y ears unless

1 Congress transferred the functions of the former INS to the Department of H o meland Security (“DHS”) on March 1, 2 003. The transfer does not affect any legal issue in the case, and the DH S did not exist during any of the original administrative proceedings. See United States v. Suarez , 6 6 4 F.3d 6 5 5 , 6 5 6 n.1 (7th Cir. 2011). We will use the current term, “removable ” rather than the word “deportable,” which was in use a t the time of Macias’s original proceedings. See Guevara v. Gonzales , 4 72 F.3d 9 7 2, 9 76 (7th Cir. 2007) (“deportable” is synonymous with “removable”).No. 16-3568 3
he obtained permission from the Att o rney Gener a l

. See 8 U.S.C. § 1182(a)(9)(A) (providing for a fiv e-y ear period of inadmissibility unless the Attorney General has consented to the a lien’s

r eapplying for admission). 2 The Board of Immi g r a ti o n Ap p ea l s (“BIA”) upheld the order , an d in March 1995, Mac ia s w a s
remov ed to Mexico. Macias did not r emain there for long. The record contains
no corroboration of when, how o r where he crossed the border , but according t o Macias, in April 1995, within w eeks of his
remov al, he reentered the United States near Reynosa, Mexico. Macias returned t o the United States purportedly t o care for his y oung son who had been serious ly inj u r ed in a car accident. Instead of seeking the consent of the A ttorney General, he asserts that he a pproached a border inspection point in T exas prepared to offer his name and Social S ecurity number

. He cl a i ms th a t he en c o untered tw o border officers who w av ed him into the United States without questioning him or asking to see trav el documents, instead greeting him with a friendly , “W elcome home.” He returned t o Chicago and remained there for tw enty-one y ears. He made no attempt during that time t o bring his immigration status into compliance with the law

. In July 2 016, Macias w a s arre s ted and charged with aggrav ated driving under the influence of alcohol. While that

2 A t the time Macias was first removed in 1 9 95, the statute then in effect required a previously rem o v e d 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 w as pending, D HS serv ed him with a Notice of Intent/Decision to Reinstate Prior Order of Remov al. Citing 8 U.S.C. § 1231(a ) ( 5 ) a nd 8 C.F .R. § 2 41.8 as authority , the Notice apprised Macias that DH S inten d ed t o r ein st a te the 1 9 9 3 order that authorized his 1 995 r emov al because Macias had illegally reentered the United States on an unknown d a te a t an unknown place. The Notice provided that he could contest the determination that he illegally reente r e d a nd w as subject t o
r emov al by reinstatement by p roviding an o ral or writte n statement, but that he had no right to a hearing before a n immigration judge

. In a letter issued a few days later , ICE again invited Macias or his representativ e to make an o ral or written statement in opposition to the contemplated reinstatement. Macias o pted for a written statement submitted by counsel. In the statement, counsel argued that M acias’s reentry into the United States w a s lawful and thus did not meet the standard for reinstatement under section 1231(a) ( 5 )

. In particular , M a cias presented hi msel f fo r in sp ecti o n a t a bo r d er checkp o int , did not deceiv e or attempt to d eceive any one, and w a s w av ed in by border guards. Counsel asserted that under the accompanying regulations and in light of Matter of Quilantan , 25 I & N Dec. 285 (BIA 2 0 1 0 ), M a ci a s’s “ p r o cedurally r egular” entry w as lawful. Counsel noted that the Sev enth Circuit had y et to rule
on whether a procedurally regular e ntr y could constitute an unlawful one for purposes of reinstatement, but conceded that other circuits h ad concluded that procedurally regular but
s ub s t antively unl a wful entr i es wer e unl a wful fo r r e in s t a te m e nt purposes. Those cases w ere distinguishable, counsel asserted, because in ea c h case the alien had engaged in some form ofNo. 16-3568 5
fraud during the r eentry process. Counsel also asked that ICE exercise prosecutorial discretion to allow M acias to r emain in the countr y

, asserting that he is “not an enforcement priority giv en 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 p rior order of remov al. The deportation officer found that Quilantan interpreted the

w ord “admitted” as the term is used for adjustment of status, and in th at context, the w ord denoted only p rocedural regular

ity

. See 8 U.S.C. § 1 255 (providing for a djustment of status of nonimmigrant to that of pers on admitted for p ermanent residence). Compliance with substantiv e legal requirements

w as not, therefore, required t o be la w fu l ly admitted for adj ustment of status. But in the case of reentry after having been previously remov ed, the deportation officer concluded that substantiv e compliance w as necessary to av oid “illegal reentry” under section 1231(a)(5). The d eportation officer cited Cordova-Soto v
. Ho lder, 659 F .3d 1029 (10th Cir

. 2011), in support, noting that the factual circumstances w ere v ery similar , and that the T

enth C ir cuit had concluded that procedural regularity w as not sufficient for lawful reentry

. The deportation officer found that Macias h ad nev e r s ou ght the permission of the Attor ne y General to r eturn, an d thus his reentry w as unlawful and the p rior order of deportation w oul d be reinstated. Finally

, prosecutorial d i scretion w as denied due to the serious nature of Macias’s p ast c r imes, his admitted membership in the Latin Kings, and the nature of his r ecent arrest for aggrav ated driving under the influence. Macias6 No. 16-3568 petitions for r eview of the decision to reinstate the prior order of deportation. II. W e r e v ie w de novo any questions of law regarding the inter p r et a ti o n o f the I mmi g r a ti o n an d Nationality Act (“INA”). Borrego v
. Mukasey, 539 F .3d 6 89, 691 (7th Cir

. 2008). “If Congress has directly spoken to the precise que stion at issue, then a court must follow that clear guidance.” Cece v
. Holder, 733 F .3d 662, 6 69 (7th Cir

. 2013) (citing Chevron, U.S.A. , Inc. v
. Natural R esources Def. Council, Inc. , 467 U.S. 837, 842–43 (1984)). But if astatute is silent or ambiguous, the court must defer t o authoritative interpretations of the law by the applicable agency
. Cece, 733 F .3d at 6 6 9 ; Chevron , 467 U.S. at 844. In the context o f interpreting ambiguous provisions in the INA, this typically means “giving Chevron deference to the Board's reasonable interpretation set forth in prec e dential opinions interpreting the statute.” Cece, 733 F .3d at 668. The gov ernment primarily asserts that the s tatute is n o t ambiguous and that the plain language controls the o utcome here. But the gov ernment also asserts that, in the absence of Board authority addressing the precise question at issue here, this cour t s hould defer t o the statutory interpretation o f the deportation officer who drafted the Notice of Reinstatement of Remov al Or der in this case. The gov ernment cites S kidmore v
. Swi f t, 32 3 U.S. 134, 140 (1944), and Bailey v
. P regis Innovative Packaging, Inc. , 600 F .3d 748, 750–51 (7th Cir

. 2010), in support. Thos e c a ses provide only that we may resort for guidance t o agency opinion letters a nd interpretations by an agency adm inistrator to the extent that those opinions hav e theNo. 16-3568 7 “pow er to persuade.” Skidmore, 323 U.S. a t 140; Bailey, 600 F .3d at 750–51. In determining whether such an opinion le tter has the pow er to persuade, w e typically e xamine “the thoroughness evident in its consideration, the v alidity of its reasoning, [and] i ts consistency with earlier and later pronouncements[.]” Skidmore, 323 U.S. at 140; Arobelidze v
. Holder, 653 F .3d 513, 520 (7th Cir

. 2011). Although w e are sometimes willing to grant Skidmore deference to non-precedential d ecis ions by single

m e mb ers of the Board of Immigration Appeals, the g ov e r nment has not cited and w e h av e not been ab le to find any instance of providing Skidmore d eference to a thinly-reasoned dec is ion by a single deportation officer , and w e decline to do
so here. Sanchez v
. Holder, 757 F .3d 712, 717 (7th Cir

. 2 014) (finding that a non-prece de ntial decision by a single member of the Board is entitled to respect but only to the extent that it has the pow er to persuade); A robelidze, 653 F .3d at 520 (same). And as will be apparent below , there i s no need to resort to the interpretation offered by the deportation officer

. W e begin with the statutory language: If the Attorney General finds that a n a lie n has reentered the United States illegally after having been r e m ov ed or having departed v oluntarily , under an o rder of remov al, the prior or der o f r emov al is reinstated from its original date and is n o t subject to being reopened or review ed, the a lien is not eligible and may not apply for any r elief under this chapter

, and the alien shall be remov ed under the prior order at any time after the reentry

.8 No. 16-3568
8 U.S.C. § 1231(a)(5). Macias d oes not d ispute that he reentered after he w as previously remov ed and that he did so during the fiv e-y ear in a dmissibility period without seeking the requisite consent from the Attorney General. The only point of dispute in interpreting the statute is whether Macias r e e ntered “illegally .” That term is not de fine d in the statute, and so Macias contends th at we should turn t o the implementing r egulation: (a) Applicability

. An alien who illegally reenters the United States after h aving been remov ed, or having departed v oluntarily

, while under an order of exclusion, deportation, or r emov al shall be remov ed 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 alie n h as been subject to a prior order of remov al. ... (2) The identity of the alien, i.e., whether the alien is in fact an alien who w as previously remov ed ... ( 3 ) Whether the alien unlawfully reentered the Unite d States. In making this determination, the
o ffi cer sh a l l co n si d er a ll relev ant evid en ce, in clud in g statements m a de b y the alien and any evidence in the alien's possession. The i mmigration officer shall attempt to v erify an alien's claim, if any , tha t he orNo. 16-3568 9
she w as lawfully admitted, which shall inc lu de a check of Service data systems a v ailable to the officer

. 8 C.F .R. § 241.8. Macias specifically cites the la st sentence of subsection (a)(3) in support of his argument tha t a procedur

ally regular entry is not unlawful, focusing o n the directiv e t o determine whether the alien w as “lawfully admitted.” In particular

, Ma cias contends that the w ords “admitted” and “admission” hav e w ell- s e ttled 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 o f the a lien into the United States after inspection and authorization by an immigration officer

. Macias argues that Congress therefo r e expressly connected the concept of “admission” with “ lawful entry

. ” Macias presented himself for inspection and w as authorized to enter by the tw o border guards who w av e d him into the country in 1995, he argues, a nd therefore his entry w as lawful. And after a ll, he argues, there w ould be no need for an immigration o fficer t o 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 answ er the que s tion of law fulness. But the regulation d o es not establish a definition for “illegal” reentry or a substantiv e standard for i llegality in the r ein st a tement co ntex t

. The regulation si mp ly in struct s DH S officials o n h ow to go ab out collecting information needed t o make the reinstatement determination. Nothing in the regulation renders the w ord “ illegally” ambiguous. Moreov er ,10 No. 16-3568
Macias goes a step too far in trying to equate “admitted” with lawfully a dmitted. Macias turns to Matter of Quilantan , 25 I & N Dec. 285 (BIA 2010), in support. That case inv olv ed a citiz e n of Mexico who entered the United States without a visa. She approache d the border as a p as s e nge r in a car , and although an immigration inspector aske d the driv er whether he w a s an American citizen, he did n ot ask Quilantan any questions. The inspector then w a v e d the car through. Quilantan later married a U.S. citizen and applied for a dj u s tm ent of status under 8 U.S.C. § 1255. That provision allows aliens who w ere “inspected and admitte d or paroled into the United S tates” to apply for adjustment of st a tus. DH S in stea d ch a r g e d her with r emov ability , a nd an Immigration Judge found that she w as statutorily ineligible for adjustment because she had not been “admitted” t o t h e U n i t e d S t a t e s w i t h i n t h e m e a n i n g o f
s e c tion 1101(a)(13)(A) of the I NA. The Immigration Judge concluded that a procedurally regular admission w as insufficient to meet that standard. Quilantan petitioned for review

. The Board noted that, ov er the y ears, Congress had loosened the requirements for applicants for adjustment of status, dropping the requirement of lawful a dmission and maintenance of non-immigrant statu s, and ev entually r equiring o nly inspection a nd admission or parole into the United S ta tes. That meant that, as of 1980, “as long a s an alien’s entry into the United States as a nonimmigrant w a s procedurally proper (i.e., the alien underw ent an inspection by an immigration officer , who subse que ntly admitted the alien), the alien could seek adjus tm e nt of status under” section 1255. Quilantan , 25 I & N Dec. a t 2 89–90. TheNo. 16-3568 11
Board w as thus confronted only with the question of whether that interpretation r e mained v alid after the enactment o f the Illegal Immigration Reform and I mmigrant Responsibility Act of 1996 (“IIRIRA”). The Board held that, “by the mselv es, the terms ‘admitted’ and ‘admission,’ as defined in section 101(a)(13)(A) of the Act, continue t o denote procedural regularity for purposes of adjustment of status, rather than
co mp l i an ce wi th s ubst anti ve l eg a l r equi r e ment s. ” Q u ilan tan , 2 5 I & N Dec. at 2 9 0. Because she presented herself for inspection, made no knowing false claims to citizenship, w as asked no questions by immigration authorities and w as allow ed into the
cou ntr y , Quilantan w as thus eligible for a djustment of status. By i ts o wn terms, Quilantan defined “admiss ion” and “admitted” only when used “by themselv es” for “purposes of adjustment of status” under section 1255. 2 5 I & N Dec. at 290. Nothing in Quilantan renders the w ord “ illegally” ambiguous in section 1231(a)(5), which applies not to a djustment of status but to reinstatement of r emov al o rders for persons previously
remov ed. By reentering the United States without the requisite permission after having been previously rem ov ed, Macias violated the predecessor v ersion o f section 1182(a)(9)(A). The gov ernment asserts that Macias thus reentered the Unite d States illegally within the plain meaning of section 1231(a)(5). That is, his reentry w as substantiv e ly illegal ev en if it w as arguably p rocedurally regular

. Ev en M acias concedes that, “[i]n common parlance, Macias’s r eentry might v ery w ell be described as ‘illegal.’” Petitioner’s Opening Brief at 2. The gov ernment cites the T enth C ircuit’s opinion in Cordova-Soto in support of its position that Macias’s reentry without the required permission from the Attorney General12 No. 16-3568

w as illegal. Like Macia s , Cordov a-Soto liv ed in the United States as a lawful perm a ne nt resident when she w as a child. She later committed tw o c r i mes inv olving moral turpitude. Like Macias, she w as remov ed from the United States with a
w arning not to return for (in her case) ten y e a r s w ithout obtaining special permission from the Attorney General. And like Macias, she returned anyw ay , w ithout the requisite permission. She came through the border a s o ne of three passengers in a t axi. The border inspector asked all of the passengers for identification. While Cordov a-Soto “pretended to look for ID,” the inspector mov ed onto other passengers, inspected the trunk, and then w av ed the car into the United States. 659 F .3d at 1030–31. Cordov a - S oto challenged the DHS determination that she

w as subj e ct to reinstatement of the prior order of remov al, claiming, in part, that her reentry w as not illegal because it w as procedurally regular

. L ike Macias, Cordov a-Soto relied on Quilantan

. The T

enth Circuit rejected Cordov a-Soto’s argument, noting th at Quilantan interpreted the term “admitted” as it is used in section 1255(a), that the holding w a s limited to the terms “ admitted” and “ admission” when used by themselv es,
a nd th at Quilantan focused on the long history of requir ing 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 reentr y

, the plain meaning of which is a reentry in violation of the law

. Nor do w e believ e that the BIA’s unusual construction of “ lawful
e n t r y ” i n the de finition of “ a d m it t e d ” i nNo. 16-3568 13 § 1101(a)(13)(A)—which ignores the plain meaning of that term—reasonably extends bey o nd its use in that definition. Cordova-Soto , 659 F .3d at 1 0 3 4

. The court thus distinguished “lawful entry” for purposes of d etermining whether an alien has been admitted under section 1255(a), from illegal re entry by a previously remov ed alien, which is at issue in section 1231(a)(5). The court also n oted that an alien who has previously been
remov ed is subject to crim ina l penalties i f she thereafter “enters, attempts to enter , or i s at any time found in, the United States,” unless the Attorney General has expressly consented in adv ance to her applying for readmission, or she establishes that she w a s not required to obtain the Attorney General’s adv ance consent. See8 U.S.C. § 1326(a). In short: W e cannot conclude that a previously remov ed alien’s procedurally regular entry cou ld be, at the
same time, a l egal r eentry for purposes of § 1231(a)(5 ) , ther eby p r eclud in g r einstatement of her
remov al order

, y et also an illegal reentry subjecting her to criminal prosecution under § 1326(a). Cordova-Soto , 659 F .3d at 1034. W e find the reasoning of our sister circuit p ersu a s iv e and
see no reason to d epart from it. Although Congress has made it progressiv ely easier for some aliens to apply for adjustment of status under section 1255, lawmakers hav e a lso chosen t o make it easier under section 1231(a)(5) t o reinstate prior
remov al orders against those who hav e i llegally reentered the14 No. 16-3568
United States after ha v ing previously been r emov ed. See Fernandez-V

ar gas v
. Gonzales , 548 U.S. 3 0, 33–34 (2006) (describing the history of the reinstatement pr ov isions); MoralesIzquierdo v
. Gonzales , 48 6 F .3d 484, 4 94 (9th Cir

. 2007) (noting that Congress' purpose behind IIRIRA w as to enable the prompt admission o f those who are entitled to be admitted, the prompt exclusion or remov al of those who are not so entitled, and the c le a r d i stinction betw een these categories). The enactment of IIRIRA, effectiv e April 1 , 1997, has provided for the broadest use of reinstatement, applying t o all i llega l

r ee ntrants, and explicitly insulating remov al o rders from review , while a lso generally foreclosing discretionary relief f r om the terms of the reinstatement order

. Fernandez-V ar g a s , 548 U.S. at 34–35. Other circuits hav e also treated a reentry after remov al and without the Attorney General’s consent (during the time period that conse nt is r equired) a s an illegal reentry for the purposes of r e ins tatement under section 1231(a)(5). See e.g., Anderson v
. Napolitano , 6 11 F .3d 275, 278–79 (5th Cir

. 2 010) (previously r emov ed alien who reentered under new , married
name and receiv ed passport stam p b ut d i d not obtain necessary permission from Attorney General, r eentered unlawfully and w as subject to reinstatement); Morales-Izquierdo , 486 F .3d

a t 498 (previously remov ed alien who r eturned t o the United States unnoticed without obtaining required permission from Attorne y General illegally reentered for reinstatement purposes); Cordova-Soto , 659 F

. 3 d a t 1035 (collecting cases). In some of these cases, the alien either conceded that the r e e ntry without the permission o f the Attorney General w as unlawful
or the alien e nga ge d in some act of d eception during theNo. 16-3568 15 purportedly “procedurally regular” reentry

. For exa mple, as
w e noted abov e, Cordov a -Soto pretended to search for identification as the border officer inspected the v ehicle and its other occupants. Anderson entered under a new (and misleading ev en thou gh legitimate) married name. These small deceptions are not relev ant to the core analysis because it i s n o t procedural r egularity that is at issue; rather it is substantiv e illegality that subjected each person to reinstatement. In fact, prior to deciding Cordova-Soto , the T enth Circuit found a p r o cedur a l ly r egul a r entry t o be unlawful for reinstatement purposes, although the a lie n h ad not r aised the i ssue of procedural regularity

. See L orenzo v
. Mukasey, 5 08 F

. 3 d 1278, 1280–83 (10th Cir

. 2007) (alien who passed through an official point o f entry in the back seat of a car , without immigration officials examining or questioning her documentation, entered unlawfully for r einstatement purposes). The T enth Circuit acknowledged that Lorenz o h ad n o t raised the statutory argument regarding pr oc edurally regular entry on which Cordov a-Soto relied, but the court n onetheless fav orably cited and relied o n Lorenzo in concluding that Cordov a-Soto’s reentry w a s unlawful. Cordova-Soto , 659 F .3d at 1035. In s um, the statute providing for reinstatement for a liens who h av e r e entered “illegally” after previously having been
remov ed is not a mbiguous. A p erson who reenters without the consent of the Attorney General during the r equired period violates at least tw o laws and therefore r e enters illegally

. See 8 U.S.C. § 1326(a) and 8 U.S.C. § 1182(a)(9)(A). Indeed, section 1 3 2 6(a) subjects the violator to significant criminal penalties, and Congress could not hav e intended for such a reentry to be considered lawful merely because a border inspector mista k-16 No. 16-3568 enly w av ed the violator into the countr y
. Nothing in the

a c c ompanying regulation is contrary to that plain-language interpretation. Finally

, w e see no reason to d epart from the T enth Circuit’s w ell-reasoned decision. PETITION DENIED.