               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

PEDRO TAMAYO -TAMAYO ,                   No. 08-74005
                      Petitioner,
                                          Agency No.
                v.                       A034-483-785

ERIC H. HOLDER JR., Attorney
General,                                  OPINION
                       Respondent.


       On Petition for Review of an Order of the
           Board of Immigration Appeals

                Argued and Submitted
     January 16, 2013—San Francisco, California

               Filed February 28, 2013

    Before: John T. Noonan, Susan P. Graber, and
         Raymond C. Fisher, Circuit Judges.

               Opinion by Judge Graber
2                TAMAYO -TAMAYO V . HOLDER

                           SUMMARY*


                           Immigration

    The panel denied Pedro Tamayo-Tamayo’s petition for
review of the government’s reinstatement pursuant to
8 U.S.C. § 1231(a)(5) of his prior order of removal, following
Tamayo’s illegal reentry into the United States after having
been removed.

    The panel held that Tamayo’s 1993 removal order did not
supersede or otherwise invalidate his original 1989 removal
order. The panel held that Tamayo’s latest entry, which was
procedurally regular but substantively illegal because border
officials allowed him to enter based on his invalid alien
registration card, met the illegal reentry requirement in
§ 1231(a)(5). The panel also held that it did not need to
decide whether Tamayo’s due process rights were violated
when the government arrested and removed him when he
showed up for an appointment ostensibly set to discuss his
application to replace his permanent resident card, because he
was not prejudiced.


                            COUNSEL

Bernadette Willeke Connolly and Raul Ray, San Jose,
California, for Petitioner.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               TAMAYO -TAMAYO V . HOLDER                    3

Edward E. Wiggers, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for Respondent.


                         OPINION

GRABER, Circuit Judge:

    Petitioner Pedro Tamayo-Tamayo petitions for review of
the government’s reinstatement of a prior order of removal,
following his illegal reentry into the United States after
having been removed. Reviewing de novo, Garcia de Rincon
v. Dep’t of Homeland Sec., 539 F.3d 1133, 1136 (9th Cir.
2008), we reject Petitioner’s legal challenges to the
reinstatement order. Accordingly, we deny the petition.

     FACTUAL AND PROCEDURAL HISTORY

    Petitioner was born in Mexico. He entered the United
States in 1973. In 1989, the government ordered Petitioner
removed to Mexico and removed him that same day.

   Petitioner reentered the United States, without permission.
For unknown reasons, the government chose to seek a new
order of removal instead of reinstating the 1989 order of
removal. In 1993, the government again ordered Petitioner
removed to Mexico and removed him the next day.

    Petitioner reentered the United States without legal
authorization yet again. According to Petitioner, he entered
at a border crossing by presenting his pre-1989 permanent
resident card to the border official. The border official
allowed Petitioner physically to enter the country.
4              TAMAYO -TAMAYO V . HOLDER

    Thereafter Petitioner filed an application to replace his
permanent resident card. Upon receiving the application, the
government realized that Petitioner had no legal authority to
be in the country. The government sent Petitioner a letter
advising him of an appointment—ostensibly to discuss his
application. When Petitioner arrived for his appointment,
however, the government arrested him. The government
presented its notice of intent to reinstate the prior order of
removal, an immigration official reinstated the prior order of
removal, and Petitioner was removed.

    Petitioner timely petitions for review.

                       DISCUSSION

    Petitioner argues that the immigration officer committed
legal error in determining (1) that he was subject to a valid
prior removal order and (2) that he illegally reentered the
United States. Petitioner also argues (3) that the immigration
officer violated his due process rights by using a ruse to
apprehend him.

    A. Prior Removal Order

   The government reinstated Petitioner’s 1989 removal
order pursuant to 8 U.S.C. § 1231(a)(5):

           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
               TAMAYO -TAMAYO V . HOLDER                      5

       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.

The plain text of the statutory provision was met with respect
to the 1989 removal order: The Attorney General found that
Petitioner had reentered illegally after having been removed
under the 1989 removal order, so that order is reinstated from
its original date, and Petitioner shall be removed under that
order at any time after reentry. We reject, as unsupported and
as contrary to the statute’s text, Petitioner’s bald assertion
that the 1989 removal order was “superseded” or otherwise
invalidated simply because a later removal order exists.

   B. Illegal Reentry

    “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 . . . .” 8 U.S.C.
§ 1231(a)(5) (emphasis added). When Petitioner reentered
the country after his 1993 removal, he lacked valid
documentation that permitted him to enter. Accordingly, he
was inadmissible under 8 U.S.C. § 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.

    It is true that Petitioner’s most recent entry was
procedurally regular: He presented himself to the border
officials, he showed them his (invalid) alien registration card,
and they allowed him physically to enter the country. But
Petitioner’s deceptive behavior at the border did not render
his entry legal. Nothing in the statute or elsewhere suggests
that Congress intended that the reinstatement provision would
6                 TAMAYO -TAMAYO V . HOLDER

not apply to aliens who were able to dupe border officials into
thinking that they had authorization to enter, or that Congress
otherwise intended to reward fraudulent behavior.

     Our decision in Hing Sum v. Holder, 602 F.3d 1092 (9th
Cir. 2010), is not to the contrary. It interpreted a different
statutory provision—the definition of “admission” under
8 U.S.C. § 1101(a)(13)(A).1 In that case, the petitioner had
entered the United States as a legal permanent resident
(“LPR”) in 1990. Id. at 1093. In 2001, after he was
convicted of a serious crime, the government sought to
remove him. Id. at 1093–94. Petitioner wanted to apply for
a statutory waiver, but that type of relief was available to non-
LPRs only. Id. at 1094. Petitioner cleverly argued that, in
1990, he had obtained his LPR status by fraud and that,
accordingly, he was a non-LPR for purposes of applying for
the statutory waiver. Id.

   We held that resolution of the case hinged on the statute’s
general definition of “admission” under 8 U.S.C.
§ 1101(a)(13)(A): “the lawful entry of the alien into the
United States after inspection and authorization by an
immigration officer.” Hing Sum, 602 F.3d at 1095–96. We
began our analysis of that term by noting that the word
“admission” could mean a procedurally regular
admission—“an inspection and authorization by an
immigration officer”—or it could mean a substantively legal
admission—the entry of those “who were properly admissible



    1
    For the same reason, the Board of Immigration Appeals’ (“BIA”)
decision in In re Areguillin, 17 I. & N. Dec. 308 (B.I.A. 1980), also is not
contrary to our decision. In that case, the BIA interpreted the phrase
“inspected and admitted,” as used in a now-revoked statutory provision.
               TAMAYO -TAMAYO V . HOLDER                     7

as LPRs at the time of entry, and not individuals like Sum
who were admissible through appearance alone.” Id. at 1096.

    We concluded that, for reasons specific to
§ 1101(a)(13)(A) and to the term “admission,” Congress
intended “admission” to mean lawful entry only in the
procedural sense. Hing Sum, 602 F.3d at 1097–1101. In
particular, the substantive meaning would render part of the
statute superfluous and also would lead to absurd results. Id.
at 1097. For example, the immigration laws sometimes refer
to “admission” and other times to “lawful admission.” Id. at
1099. A procedural definition of “admission” gave effect
to those provisions referring to “lawful
admissions”—admissions that are both procedurally lawful
and, because they are specified as “lawful admissions,”
substantively lawful. Id. We also found support for our
procedural interpretation of “admission” in the “evolution of
the statute.” Id. Case law and BIA interpretation in effect at
the time that Congress defined the term supported our
interpretation. Id. at 1099–1101. Finally, we noted that our
decision accorded with decisions by our sister circuits and the
BIA. Id. at 1096 & n.3. In sum, we held that the history and
context of that specific statutory provision demonstrated that
Congress intended the procedural meaning.

    Unlike in Hing Sum, nothing suggests that Congress
intended the procedural definition to apply to the phrase
“reentered the United States illegally” in § 1231(a)(5).
Interpreting the term in its substantive sense does not lead to
superfluous text or absurd results, and nothing in the history
of § 1231(a)(5) suggests that Congress intended the
procedural meaning of illegal reentry.
8              TAMAYO -TAMAYO V . HOLDER

    We hold 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.

    C. Due Process

    The government’s decision to arrest and remove
Petitioner when he showed up for his interview did not
prejudice him. Accordingly, we need not, and do not, decide
whether there was a due process violation. See Morales-
Izquierdo v. Gonzales, 486 F.3d 484, 496 (9th Cir. 2007) (en
banc) (holding that, to obtain relief, a petitioner must
demonstrate a due process violation and prejudice).

    “To show prejudice, [a petitioner] must present plausible
scenarios in which the outcome of the proceedings would
have been different if a more elaborate process were
provided.” Id. at 495 (internal quotation marks omitted).
Here, Petitioner makes no allegation that the outcome of the
proceedings would have or could have been different, had he
been apprehended through other means. At oral argument, he
asserted that he was prejudiced because he did not bring a
lawyer with him, which he would have done had he known
about the government’s intentions. But he has not shown
how having a lawyer present could have made any difference
to the outcome. As discussed above, issuance of the
reinstatement order was proper and, even with skilled legal
counsel, no relief was available to Petitioner. Accordingly,
Petitioner cannot show prejudice, so his due process claim
fails. See id. at 496.

    Petition DENIED.
