Reinstatement of removal

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Reinstatement of removal in the United States refers to an immigration enforcement procedure in which a previously deported foreign national can again be removed for subsequent illegal reentry with no required judicial review except in very limited exceptional circumstances.[1] In such a situation, the original "order of removal" gets resurrected and is reviewed by a U.S. court of appeals under the well-known gross miscarriage of justice standard.[2][3][4][5][6] Other legal issues may also be raised in the petition for review, including a United States nationality determination,[7] or a request for asylum, withholding of removal or deferral of removal.[5][8] Under the Immigration and Nationality Act (INA), a foreign national is an alien and not an American.[9] "Only 'aliens' are subject to removal under the INA."[10]

History[]

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.[4] Reinstatement of removal was introduced in legislation as part of the IIRIRA,[11] passed by the 104th United States Congress and signed into law by then-U.S. President Bill Clinton, and active as of April 1, 1997.[12] 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.[4]
  • 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.[4]
  • In Fernandez-Vargas v. Gonzales (2006), the 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.[4][13] 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.[12]

Procedure and conditions[]

Applicability[]

Reinstatement of removal only applies to an alien,[9] and who satisfies all of the following conditions:[5]

  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.[14] Thus, reinstatement of removal applies to orders of removal, deportation and exclusion.[4]

Notice and opportunity to contest[]

A U.S. Immigration and Customs Enforcement (ICE) officer who establishes that the alien meets all the requirements may decide to pursue a reinstatement of removal.[1] This involves the following steps:[5][4]

  • The officer provides the alien with a written notice of his or her determination (on Form I-871).[4][6]
  • 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.[5]

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 U.S. courts of appeals have held that an alien may appeal a reinstatement order within 30 days of the reinstatement period.[2] 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.[6][4] This can be done even from outside the United States.[15] The ICE has a policy of returning any alien who succeeds in obtaining relief from removal in a court.[16]

If the ICE 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.[4][17]

Exceptions[]

There are two main kinds of exceptions:[5]

  1. Reasonable Fear: If the alien expresses a fear of persecution or torture in the country to where he or she is being removed to, 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.[5][4] The eligible types of applications include:[4]

Prior to the passage of LIFE Act, exceptions were carved out only for HRIFA and NACARA Section 202 applicants.[5]

Related procedures[]

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:[18]

  • 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. ^ a b "Johnson v. Guzman Chavez, 141 S.Ct. 2271 (2021)". U.S. Supreme Court. Casetext.com. June 29, 2021. p. 2284.
  2. ^ a b 8 U.S.C. § 1252(f)(2) ("Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.") (emphasis added)
    • "Andreiu v. Ashcroft, 253 F.3d 477". Ninth Circuit. Harvard Law School. June 18, 2001. p. 482. ['Notwithstanding any other provision of law'] means that § 1252(f)(2)'s standard for granting injunctive relief in removal proceedings trumps any contrary provision elsewhere in the law.
    • "Vazquez v. Garland, ___ F.4th ___, No. 18-70329". Ninth Circuit. Casetext.com. November 12, 2021. p. 6. [W]e have interpreted § 1252(a)(2)(D) to permit a limited collateral attack on the original removal order on which the reinstatement order is premised.
    • "United States v. Charleswell, 456 F.3d 347". Third Circuit. Harvard Law School. August 1, 2006. p. 352. Having determined that we may review Charleswell's attempt to collaterally challenge the 1991 Deportation order, we next address whether he is able to meet the Mendoza-Lopez requirements.
    • "Gonzalez-Cantu v. Sessions, 866 F.3d 302". Fifth Circuit. Harvard Law School. August 1, 2017. p. 306.
    • "Vega-Anguiano v. Barr, 982 F.3d 542". Ninth Circuit. Casetext.com. November 19, 2019. p. 551. Collateral attacks on removal orders brought under § 1252(a)(1) are extremely limited, but they are available when an order results in a 'gross miscarriage of justice.'
  3. ^ Smith, Hillel R. (January 22, 2021). "Reinstatement of Removal: An Introduction". Congressional Research Service. Retrieved February 2, 2021.
  4. ^ a b c d e f g h i j k l 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.
  5. ^ a b c d e f g h "8 CFR 241.8 - Reinstatement of removal orders". Legal Information Institute. Retrieved July 22, 2015.
  6. ^ a b c "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.
  7. ^
  8. ^ 8 U.S.C. § 1231(b)(3)(A); 8 CFR 1208.16
    • "INS v. Aguirre-Aguirre, 526 U.S. 415". U.S. Supreme Court. Harvard Law School. May 3, 1999. p. 420.
      • "Luziga v. Attorney General, 937 F.3d 244". Third Circuit. Casetext.com. September 5, 2019. p. 251-52. Withholding of removal is a mandatory form of relief that prevents removal of a noncitizen to a country where that individual's life or freedom would be threatened because of race, religion, nationality, membership in a particular social group, or political opinion.
  9. ^ a b See, e.g.,
  10. ^ "Fernandez v. Keisler, 502 F.3d 337". Fourth Circuit. September 26, 2007. p. 341.
  11. ^ "Subtitle A—Revision of Procedures for Removal of Aliens" (PDF). U.S. Congress. U.S. Congress. p. 600.
  12. ^ a b Mehta, Cyrus; Walker, Lin. "Reinstatement Of Removal". Immigration Daily.
  13. ^ 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.
  14. ^ "Subtitle A—Revision of Procedures for Removal of Aliens" (PDF). U.S. Congress. U.S. Congress. p. 628. (d) TRANSITIONAL REFERENCES.—For purposes of carrying out the Immigration and Nationality Act, as amended by this subtitle—(1) any reference in section 212(a)(1)(A) of such Act to the term 'inadmissible' is deemed to include a reference to the term 'excludable', and (2) any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation.
  15. ^
  16. ^ "11061.1: Facilitating the Return to the United States of Certain Lawfully Removed Aliens" (PDF). U.S. Immigration and Customs Enforcement. February 24, 2012. Retrieved 2021-10-29. 3.1. Facilitate an Alien's Return. To engage in activities which allow a lawfully removed alien to travel to the United States (such as by issuing a Boarding Letter to permit commercial air travel) and, if warranted, parole the alien into the United States upon his or her arrival at a U.S. port of entry. Facilitating an alien's return does not necessarily include funding the alien's travel via commercial carrier to the United States or making flight arrangements for the alien.
    • "Nken v. Holder, 556 U.S. 418 (2009)". U.S. Supreme Court. Harvard Law School. April 22, 2009. p. 435. Aliens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal.
      • "Addo v. Barr, 982 F.3d 1263". Tenth Circuit. Casetext.com. December 14, 2020. p. 1268 n.4. We note that Petitioner's removal has not mooted his petition for review because, 'in the event this court grants his petition, [Immigration and Customs Enforcement] would facilitate his return to the United States pursuant to its Facilitation of Return Policy.'
      • "Singh v. United States Citizenship & Immigration Services, 878 F.3d 441". Second Circuit. Harvard Law School. December 22, 2017. p. 443. The government conceded that Singh's removal was improper given the Ninth Circuit's stay. Consequently, in May 2007, Singh was temporarily paroled back into the United States by the Attorney General, who exercised his discretion to grant temporary-parole to certain aliens.
      • "Bonilla v. Lynch, 840 F.3d 575". Ninth Circuit. Harvard Law School. July 12, 2016. p. 589.
      • "Orabi v. Attorney General, 738 F.3d 535". Third Circuit. Harvard Law School. January 2, 2014. p. 538, 543.
  17. ^
    • "Bibiano v. Lynch, 834 F.3d 966". Ninth Circuit. Harvard Law School. August 19, 2016. p. 969. We join the noncontroversial holding—shared by the nine other circuits which have addressed this issue in detail—that § 1252(b)(2)'s venue provision is not jurisdictional.
    • "United States v. Calderon, 243 F.3d 587". Second Circuit. Harvard Law School. March 1, 2001. p. 590. Venue is not jurisdictional....
  18. ^ "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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