Reinstatement of removal

Reinstatement of removal refers to an immigration enforcement procedure in the United States in which a previously removed (deported) alien can again be deported for subsequent illegal reentry with no required judicial review except in very limited exceptional circumstances.[1][2][3][4][5]

According to the Immigration and Nationality Act of 1952 (INA), the term "alien" means any person or individual who is not a United States national.[6]

History

Existence before IIRIRA

Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), reinstatement of removal only applied to aliens previously deported (not excluded) on grounds relating to certain criminal convictions, failing to register, falsification of documents, or security or terrorist related grounds.[3]

Formalization in IIRIRA (1996, active since April 1997)

Reinstatement of removal was introduced in legislation as part of the IIRIRA, passed by the 104th United States Congress and signed into law by then-United States President Bill Clinton, and active as of April 1, 1997.[7]

Subsequent changes and refinements

The practice of reinstatement of removal has refined and evolved through a mix of legislation, guidelines by immigration enforcement agencies, and court decisions. These include:

  • The Legal Immigration Family Equity Act of 2000 established that those who had a pending application for adjustment of status in various categories could not be subject to reinstatement of removal.[3]
  • In three decisions between 2003 and 2005, various courts of appeals held that those who had affirmatively applied for adjustment of status prior to April 1, 1997, could not be subject to reinstatement of removal.[3]
  • In Fernandez-Vargas v. Gonzales (2006), the United States Supreme Court ruled that reinstatement of removal applied even for aliens who had re-entered the United States prior to April 1, 1997, if they had made no effort to adjust status prior to that date.[3][8] This was in contrast to the general belief in the immigration law community at the time, that reinstatement of removal applied only if the most recent re-entry was on or after April 1, 1997.[7]

Procedure and conditions

Applicability

Reinstatement of removal may apply to aliens (i.e., people who are not United States nationals) who satisfy all of the following conditions:[4]

  1. The alien received a prior order of removal, deportation or exclusion. This may have been expedited removal, stipulated removal, or removal or deportation through regular court proceedings.
  2. The alien departed the United States after receiving such order. This includes both voluntary departure and involuntary removal. The key requirement is that the alien received an order of removal, deportation or exclusion (Note that if the alien did not depart, then the reinstatement of removal does not apply. However, the earlier removal can still be executed).
  3. The alien subsequently re-entered the United States without permission from the U.S. immigration authorities.
  4. The alien is not currently in a lawful status.
  5. None of the exceptions discussed in the Exceptions section apply to the alien.

Although the language of the statute refers only to prior orders of removal, section 309(d)(2) of the IIRIRA clarifies that any reference in law to an order of removal should be interpreted to include orders of exclusion and deportation. Thus, reinstatement of removal applies to orders of removal, deportation and exclusion.[3]

Notice and opportunity to contest

An immigration officer who establishes that the alien meets all these requirements may decide to pursue a reinstatement of removal. This involves the following steps:[4][3]

  • The officer provides the alien with a written notice of his or her determination (on Form I-871).[3][5]
  • The officer advises the alien that he or she may make a written or oral statement contesting the determination.
  • If the alien wishes to make such a statement, the officer allows the alien to do so and considers whether the alien's statement warrants reconsideration of the determination.

After the officer has determined that the alien meets the conditions for deportation, the officer reinstates the previous order of exclusion, deportation or removal.[4]

Appealing the reinstatement order

The immigration officer's decision is considered final and there is no scope for appeal within the immigration enforcement bureaucracy. However, the United States courts of appeals have ruled that an alien may appeal a reinstatement order within 30 days of the reinstatement period. Filing an appeal does not automatically grant a stay of removal, and the person must file a stay of removal. Conversely, being removed does not preclude a person from filing, or proceeding with, an appeal challenging the reinstatement.[5][3] This can be done even from outside the United States. The DHS has a policy of returning any alien who succeeds in obtaining relief from removal in a court.[9]

If the DHS reinstatement order was issued in a different jurisdiction from that where the original order of removal being reinstated was issued, the person appealing may have a choice of which court of appeal to appeal the case in.[3]

Exceptions

There are two main kinds of exceptions:[4]

  1. Reasonable Fear: If the alien expresses a fear of persecution or torture in his or her home country, the alien is referred to a reasonable fear interview with a United States Citizenship and Immigration Services officer. If the fear determination is unfavorable, the alien is subject to reinstatement of removal. If the determination is favorable, the alien is scheduled for a hearing before an immigration judge.
  2. Those with pending applications for benefits or adjustment of status: The immigration officer cannot reinstate an earlier order of removal while an application of any of these types is pending. The order may be reinstated after a final decision to deny the application for adjustment has been made.[4][3] The eligible types of applications include:[3]

Prior to the passage of LIFE Act, exceptions were carved out only for HRIFA and NACARA Section 202 applicants.[4]

Further information: Removal proceedings

A "Just Facts" summary by the Immigration Policy Center identified a few other summary removal practices similar to reinstatement of removal:[10]

  • Expedited removal: This applies to aliens who arrive at a designated port of entry, or those who have recently entered without authorization.
  • Stipulated removal: Here, the alien is formally charged and placed in immigration court proceedings before an immigration judge. However, the alien does not actually appear before the judge, but rather agrees (or "stipulates") to deportation and gives up his or her right to a hearing. The immigration judge may enter the order of removal without seeing the alien and asking him or her whether the stipulation was entered into knowingly and voluntarily.

References
  1. Smith, Hillel R. (January 22, 2021). "Reinstatement of Removal: An Introduction". Congressional Research Service. Retrieved February 2, 2021.
  2. Vega-Anguiano v. Barr, 982 F.3d 502 (9th Cir. 2020)
  3. Realmuto, Trina (April 29, 2013). "Reinstatement of Removal: Practice Advisory" (PDF). American Immigration Council Legal Action Center, as part of the National Immigration Project. Archived from the original (PDF) on February 26, 2015. Retrieved July 23, 2015.
  4. "8 CFR 241.8 - Reinstatement of removal orders". Legal Information Institute. Retrieved July 22, 2015.
  5. "Expedited Removal, Reinstatement of Removal, and Administrative Removal Proceedings" (PDF). University of Miami School of Law Immigration Clinic. Archived from the original (PDF) on September 20, 2014. Retrieved July 22, 2015.
  6. Fernandez v. Keisler, This article incorporates text from this source, which is in the public domain. 502 F.3d 337, 341 (4th Cir. 2007) ("Only 'aliens' are subject to removal under the INA."); Salim v. Ashcroft, This article incorporates text from this source, which is in the public domain. 350 F.3d 307, 309 (3d Cir. 2003) ("The [INA] defines a 'national' as '(A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.' 8 U.S.C. § 1101(a)(22)."); Matter of Navas-Acosta, This article incorporates text from this source, which is in the public domain. 23 I&N Dec. 586 (BIA 2003) ("Only aliens are subject to removal."); 8 U.S.C. § 1452(b); 8 C.F.R. § 239.2(a)(1).
  7. Mehta, Cyrus; Walker, Lin. "Reinstatement Of Removal". Immigration Daily.
  8. Joaquin, Linton (August 23, 2006). "Supreme Court finds reinstatement of removal applies to pre-IIRIRA entries". National Immigration Law Center. Archived from the original on July 24, 2015. Retrieved July 23, 2015.
  9. See ICE Policy, § 11061.1(2); Nken v. Holder, This article incorporates text from this source, which is in the public domain. 556 U.S. 418, 435 (2009); Addo v. Barr, This article incorporates text from this source, which is in the public domain. No. 18-9560, at 7 n.4 (10th Cir. 2020); Igiebor v. Barr, This article incorporates text from this source, which is in the public domain. No. 19-9579, at 9-10 (10th Cir. 2020); Bonilla v. Lynch, This article incorporates text from this source, which is in the public domain. 840 F.3d 575, 589-90 n.11 (9th Cir. 2016); Orabi v. Attorney General, This article incorporates text from this source, which is in the public domain. 738 F.3d 535, 538 (3d Cir. 2013).
  10. "Removal Without Recourse: The Growth of Summary Deportations from the United States". Immigration Policy Center. April 28, 2014. Retrieved July 19, 2015.
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