Suppose an alien is discovered to have re-entered the United States illegally after having been once removed or having left under a grant of voluntary departure under a removal order. In that case, the alien may be subject to reinstatement of removal.
Reinstatement of removal is a method where the Department of Homeland Security (DHS) examines the previous removal order and, at its preference, reinstates that previous removal order. Aliens eventually subject to reinstatement of removal will not have the option to have the reinstatement inspected by an immigration judge. Where DHS is considering reinstatement of removal, an alien, depending on the facts of their case, may have narrow avenues to pursue relief from the reinstatement of removal.
What Is a “Reinstatement of Orders” in a Removal Hearing?
A Reinstatement of Orders may be applied to an alien who has illegally re-entered the U.S. after being removed (deported) or excluded from the country. Therefore, the foundation for a reinstatement of a removal order is an illegal reentry after deportation.
For instance, imagine an alien being deported from the U.S. and returned to their home country. The removal order included instructions that the alien cannot re-enter the U.S. until ten years after the deportation. If the alien disregards these conditions by re-entering the U.S. 2 years later, they may be subject again to removal. In other words, the prior removal order is reinstated, hence the phrase “reinstatement of orders.”
An alien who is subject to a reinstatement of orders must be provided written notice of the reinstatement by an immigration officer.
Rules and Regulations for Reinstatement of Removal
Section 241(a)(5) of the Immigration and Nationality Act (INA) provides only that where the Attorney General discovers that an alien has perpetrated unlawful re-entry into the United States after having been ousted or been granted and left according to a grant of voluntary departure, the last order of removal shall be reinstated and not subject to reopening or review. According to the reinstated removal order, the statute adds that the alien may not apply for relief and shall be removed.
Regulations found in 8 C.F.R. 241.8 list the three elements that the immigration officer should document to demonstrate whether an alien should be subject to reinstatement of removal:
- Whether the alien has been subject to a previous order of removal;
- Confirmation of the alien’s identity to establish whether the alien in question is the alien subject to a previous order of removal;
- Whether the alien entered the United States unlawfully.
Suppose the immigration officer determines that the alien in question was subject to a previous removal order. The alien in question had re-entered the United States unlawfully. In that case, the immigration officer will inform the alien of the judgment to reinstate the previous removal order and deliver the alien with the chance to make a written or oral statement challenging the judgment. The officer can evaluate whether anything in the alien’s statement merits reconsideration of the determination to reinstate the previous removal order.
Provided that the alien cannot show that they were not subject to a previous removal order, did not re-enter the country unlawfully, or should not be subject to reinstatement of removal, the alien will obtain a Form I-871 “Notice of Intent/Decision to Reinstate Prior Order” and be placed in the reinstatement of removal proceedings.
It is essential to comprehend that “removal” in both the statute and regulations has been found to contain exclusion, deportation, removal, expedited removal, and stipulated removal.
Entries that are procedurally lawful but otherwise prohibited due to a previous removal order may initiate reinstatement of removal. Similarly, under the U.S. Supreme Court decision in Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006), reinstatement of removal applies where the re-entry happened before the effective date of the reinstatement of removal statute (April 1, 1997).
Nonetheless, the Court left open in Fernandez-Vargas whether reinstatement may be applied to an alien who had applied for relief from removal before April 1, 1997. Circuit Courts have diverged on the question.
Reinstatement of Removal: Procedures and Remedies
Under specific scenarios, an alien may be able to claim that they should not be subject to reinstatement of removal. The most apparent scenarios are if the alien can show that they did not re-enter illegally, were not subject to a previous removal order or earlier removed, or are U.S. citizens.
When it is eventually decided that an alien is subject to reinstatement of removal, the alien does not have the privilege of a hearing before an immigration judge [8 C.F.R. § 241.8(a)].
Nevertheless, there are narrow occasions when an alien who cannot show that they should not be subject to reinstatement of removal may seek to avoid reinstatement. An alien will have 30 days from the final order of removal to pursue remedy from the reinstatement of removal.
Can a Reinstatement of a Removal Order be Contested?
If an alien has received notice of a reinstatement of a removal order, they are usually entitled to submit a statement contesting the order. If they present such a contestation, the immigration authorities must review the reinstatement. An alien typically has no privilege of an in-person hearing or any other form of relief (such as an appeal) to contest the order.
On the other hand, immigration authorities must view all the relevant data and evidence related to the reinstatement of the removal order before they can complete the alien’s removal from the country.
The immigration officer must:
- Get the earlier order of removal or exclusion
- Resolve whether the alien is, in fact, the individual who was earlier removed (or who willingly departed) under the last order
- Determine whether the alien’s re-entry into the U.S. was, in fact, illegal
Therefore, if the immigration authorities can’t resolve these facts, the alien may be dismissed from the reinstatement of removal orders. For instance, if the alien’s fingerprints don’t correspond with the records for the individual once removed, the order may not be reinstated.
Are There any Exceptions to These Rules?
Yes, there are a few peculiarities to regulations regarding reinstatements of removal orders. An immigration officer can’t reinstate earlier removal orders for specific aliens, including:
- Aliens who have a well-founded fear of returning to the country of removal in the previous order (such as fear of torture or persecution)
- Aliens who are qualified applicants for an adjustment of status under the Immigration and Nationality Act
- Aliens who have applied for adjustment of status under the Nicaraguan Adjustment and Central American Relief Act (NACARA) or the Haitian Refugee Immigrant Fairness Act (HRIFA)
Hence, protections under these provisions can cause the reinstatement of earlier removal orders to have no legal impact, making them unenforceable.
Do I Need a Lawyer if I Have Issues With a Reinstatement of Removal Order?
If you have any inquiries, problems, or legal disputes involving a reinstatement order, you may wish to contact an immigration lawyer immediately. It may be that the order was wrongly issued against you or that your identity has been confused with another person. A qualified immigration lawyer in your area may be able to help you in having the reinstatement order lifted.
