                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 5, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                              FOR THE TENTH CIRCUIT


    LAKHVIR GURPAL KHAKHN,

                Petitioner,

    v.                                                   No. 08-9544
                                                     (Petition for Review)
    ERIC H. HOLDER, JR.,
    United States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before LUCERO, PORFILIO, and ANDERSON, Circuit Judges.


         Petitioner Lakhvir Gurpal Khakhn petitions for review of an immigration

officer’s (IO) May 2008 decision ordering him removed by reinstatement of a

prior removal order. 1 He first argues that the reinstatement statute, 8 U.S.C.

*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
       We acknowledge that the documents in the administrative record refer to
Mr. Khakhn by various aliases. Neither party disputes that Mr. Khakhn is the
individual referenced therein. Mr. Khakhn asserts in a footnote in his appellate
brief that his real name is Lakhvir Singh but refers to himself as Lakhvir Gurpal
                                                                      (continued...)
§ 1231(a)(5) does not facially apply to him. He then argues that if § 1231(a)(5)

does apply to him, (1) the LIFE Act prohibits reinstatement because he applied

for adjustment of status thereunder; 2 (2) 8 U.S.C. § 1255a(e)(2) prohibits

reinstatement of his prior removal order until his legalization application has been

adjudicated, and (3) application of § 1231(a)(5) is impermissibly retroactive

because he applied for legalization prior to that statute’s enactment. We deny

Mr. Khakhn’s petition for review. 3

                      I. Factual and Procedural Background

      Mr. Khakhn, a native and citizen of India, entered the United States from

Canada around 1980. He lived California until 1998. He admitted in a sworn

2003 statement that he traveled to Canada for a few months in 1987, then returned

to the United States without inspection. He also traveled to Canada in 1989 and

was arrested on his attempted reentry. He admitted he was deportable and applied

for voluntary departure in lieu of deportation. An Immigration Judge entered a



1
(...continued)
Kahkhn throughout for ease of use. We shall do the same.
2
      The “Life Act,” as used herein, refers both to the Life Act, Pub. L. No.
106-553, 114 Stat. 2762A-142 through 149 (2000), and LIFE Act Amendments of
2000, Pub. L. No. 106-5545, 114 Stat. 2763A-324 through 328 (2000).
3
       We previously abated this matter due to an outstanding administrative relief
proceeding. As Mr. Khakhn has now informed the court that the administrative
relief proceeding has ended and that he does not seek review of the outcome in
that proceeding, our previous abatement order is hereby lifted. The government’s
motion to dismiss is denied.

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summary order allowing Mr. Khakhn until October 5, 1989, to voluntarily depart.

The decision included an alternate deportation order to become “immediately

effective” upon Mr. Khakhn’s failure to voluntarily depart by October 5. Admin

R. at 2. Under that order, Mr. Khakhn was to be deported “without further notice

or proceedings” to Canada or, if Canada would not accept him, to India. Id.

      Mr. Khakhn was released from custody after posting bond. He alleges,

based on his 2003 statement, that he left the United States for Canada before

October 5, 1989; crossed into Canada without inspection; and was then smuggled

back into the United States in early 1990. See id. at 27. Other than his 2003

statement, there is no evidence to support this assertion. A Warrant of

Deportation was entered against him dated November 7, 1989, and the

government considered his bond to be breached as of February 23, 1990.

      In March 1990, Mr. Khakhn filed a Form I-687 application for legalization

under 8 U.S.C. § 1255a. At some unknown time, he again left the United States.

He reentered the United States in December 1998, using a fraudulent Indian

passport and United States visa with his picture and someone else’s name. He

moved to Washington and filed a LIFE Act application for adjustment of status in

March 2002. He moved to Nevada and appeared for an interview on his LIFE Act

application in January 2003. He was taken into custody on the basis of the

outstanding 1989 deportation warrant. He was released on bond, but, after his




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LIFE Act application was denied in September 2003, he again failed to report for

deportation.

      Mr. Khakhn was arrested in January 2008. In April 2008, he was issued a

notice of intent to reinstate his 1989 deportation order under § 1231(a)(5).

Although not in the record, Mr. Khakhn evidently made a statement contesting

this notice, but a supervisory IO determined that he was “subject to removal

through reinstatement of the prior [removal] order” based on his review of “all

available evidence, the administrative file and any statements made or submitted

in rebuttal.” Id. at 1. His petition for review of that order is now before us.

                                     II. Analysis

      We have jurisdiction over Mr. Khakhn’s petition because a reinstatement

order made by an IO is a “final order of removal” reviewable under 8 U.S.C.

§ 1252(a)(1). See, e.g., Berrum-Garcia v. Comfort, 390 F.3d 1158, 1162 (10th

Cir. 2004).

      A. Requirements for Reinstatement. Mr. Khakhn contends that he does not

meet the facial requirements for reinstatement. Reinstatement orders are issued

pursuant to § 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.

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An IO must make three determinations: (1) ‘the alien has been subject to a prior

order of removal’; (2) ‘the alien is in fact an alien who was previously removed’;

and (3) ‘the alien unlawfully reentered the United States.’” Garcia-Marrufo v.

Ashcroft, 376 F.3d 1061, 1064 (10th Cir. 2004) (quoting 8 C.F.R. § 241.8).

      1. Prior Removal Order. Mr. Khakhn first argues that he has not been

subject to a prior order of removal because he timely departed from the United

States, thus, the 1989 order never became a removal order. In reinstating the

order, the IO relied on the agency’s 1989 administrative determination that

Mr. Khakhn failed to leave the country in a timely manner, and its subsequent

issuance of the deportation warrant. Based on his 2003 statement, Mr. Khakhn

asserts that he timely departed in 1989 to Canada without inspection. He admits

he did not surrender for deportation when ordered to do so, and made no attempt

to get the bond money returned, which was declared breached in 1990. Other

than his 2003 statement, there is no evidence to support his assertion that he

timely departed. In short, he has made no colorable showing of a timely

departure. We therefore find no error in the IO simply relying on the agency

records. There is a presumption of regularity that attaches to such administrative

procedures, and we will not assume, absent clear evidence to the contrary, that the

agency erred in determining that he failed to timely depart. See Yuk v. Ashcroft,

355 F.3d 1222, 1232 (10th Cir. 2004); Bar MK Ranches v. Yuetter, 994 F.2d 735,

740 (10th Cir. 1993). No such evidence has been presented.

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      2. Illegal Reentry. Mr. Khakhn next argues that his December 1989 return

to the United States was not an illegal reentry for purposes of § 1231(a)(5)

because he “was admitted and inspected by an [IO] when he reentered the U.S.”

Pet’r Br. at 9. We disagree.

      The question of whether reentry after inspection and admission by an IO,

but through the use of fraudulent entry documents, is an illegal reentry, is a

question of law that we review de novo. Ochieng v. Mukasey, 520 F.3d 1110,

1113 (10th Cir. 2008). Mr. Khakhn’s argument is that any entry that follows

inspection and authorization by an IO should be considered a “legal” entry for the

purposes of reinstatement under 8 U.S.C. § 1231(a)(5). To the contrary, we held

in Lorenzo v. Mukasey that an alien who entered in the back seat of a car without

questioning by officials illegally entered for purposes of § 1231(a)(5), because

aliens entering without proper documentation were “inadmissible” and because

the alien in question had been previously removed and was not eligible for legal

admission at the time of reentry. 508 F.3d 1278, 1283 (10th Cir. 2007). Thus, we

conclude that Mr. Khakhn met the facial requirements for reinstatement under

§ 1231(a)(5).

      B. LIFE Act and Amendments. Mr. Khakhn next argues that “[s]ection

1104(g) of the LIFE Act explicitly prohibits the DHS from reinstating prior

deportation orders against LIFE Act applicants.” Pet’r Br. at 11. That section

reads: “Section 241(a)(5) [8 U.S.C. § 1231(a)(5)] of the Immigration and

                                          6
Nationality Act shall not apply with respect to an alien who is applying for

adjustment of status under this section.” 114 Stat. 2763A-325. But Mr. Khakhn

is no longer “applying” for adjustment of status under the LIFE Act; his

application was denied in 2004. He argues that anyone who applies for

adjustment of status under the LIFE Act is permanently immune to reinstatement

because the statute could have been written to more clearly state that immunity

from reinstatement lasts only until a final determination is made on the

application. This argument is without merit. Congress’ use of the present

participle is unambiguous. Under Mr. Khakhn’s strained interpretation, every

alien who illegally reentered the country after removal would simply file a LIFE

Act application when apprehended, and be forever immune from reinstatement, an

absurd result.

      C. 8 U.S.C. § 1255a. Finally, Mr. Khakhn asserts that he is not subject to

reinstatement because he applied for legalization under 8 U.S.C. § 1255a in

March of 1990 and his Form I-687 application has not yet been adjudicated.

      Pursuant to § 1255a “certain aliens unlawfully present in the United States

can apply to become legal residents” through a process referred to as legalization.

Proyecto San Pablo v. INS, 189 F.3d 1130, 1134 (9th Cir. 1999).

      1. Section 1255a(e)(2). Mr. Khakhn first asserts that § 1255a(e)(2)

prohibits reinstatement of his prior removal order until his I-687 application is

adjudicated. His three-sentence argument is conclusory and unsupported by any

                                          7
legal analysis or relevant precedent. His argument is neither reasoned nor

adequate to merit reversal. “Arguments inadequately briefed in the opening brief

are waived . . . .” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir.

1998); see also Fed. R. App. P. 28(a)(9)(A) (“[Appellant’s] argument . . . must

contain . . . appellant’s contentions and the reasons for them, with citations to the

authorities and parts of the record on which appellant relies.”).

      2. Impermissibly Retroactive. Mr. Khakhn argues that, if reinstatement of

his removal order is not barred by §1255a(e)(2), application of § 1231(a)(5) in his

case would have an impermissibly retroactive effect. He argues that he applied

for legalization prior to enactment of § 1231(a)(5) and reinstatement would cut

off his right to have his I-687 application for relief “completed and adjudicated in

a fair and just manner.” Pet’r Br. at 15. The government admits his I-687

application has never been adjudicated, but asserts there is no impermissible

retroactive effect because the application does not provide an avenue of relief for

Mr. Khakhn. The retroactivity of a statute is a question of law we review de

novo. Hem v. Maurer, 458 F.3d 1185, 1189 (10th Cir. 2006). We conclude that

§ 1231(a)(5) does not have an impermissible retroactive effect here because he

illegally reentered the country after the statute’s effective date.

      In Fernandez-Vargas v. Gonzales, the Supreme Court held that

§ 1231(a)(5) did not have an impermissibly retroactive effect with respect to an

alien who reentered the country prior to enactment of § 1231(a)(5) because the

                                           8
statute did not affect the past act of illegal reentry but, instead, focused on the

“predicate action” of the alien’s continued illegal presence after entry. 548 U.S.

30, 44 (2006). Here, Mr. Khakhn illegally reentered the country after the

statute’s effective date. The Court clearly assumed in Fernandez-Vargas that

§ 1231(a)(5) applied to reentries after enactment of § 1231(a)(5). Mr. Khakhn is

assumed to have known, at the time he illegally reentered the country in 1998,

that § 1231(a)(5) provided that aliens in his position were ineligible for any relief

under the immigration law. See Warner v. Ashcroft, 381 F.3d 534, 538 (6th Cir.

2004) (holding that because the alien’s illegal reentry occurred after IIRIRA’s

effective date, the alien “was on notice of the consequences of his illegal reentry

before he chose to illegally reenter the United States”) ; Lopez v. Heinauer,

332 F.3d 507, 512 (8th Cir. 2003) (“Because [§ 1231(a)(5)] was in effect at the

time of [the alien’s] reentry conduct, its provisions appropriately define his

rights.). Thus, Mr. Khakhn’s retroactivity argument must fail.

      Mr. Khakhn’s petition for review is DENIED.


                                                      Entered for the Court


                                                      Stephen H. Anderson
                                                      Circuit Judge




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