Introduction to Reinstatement of Removal

If an alien is found to have reentered the United States illegally after having been previously removed or having left under a grant of voluntary departure under a removal order, the alien may be subject to reinstatement of removal. Reinstatement of removal is a procedure where the Department of Homeland Security (DHS) reviews the previous removal order, and in its discretion, reinstates that prior removal order. Aliens ultimately subject to reinstatement of removal will not have the opportunity to have the reinstatement reviewed by an immigration judge. Where DHS is considering reinstatement of removal, an alien, depending on the facts of his or her situation, may have limited avenues to seek relief from reinstatement of removal. This article will explain how reinstatement of removal functions and the avenues that an alien who may otherwise be subject to reinstatement may have to avoid removal.

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 finds that an alien has committed an illegal reentry into the United States after having previously been removed or been granted and left pursuant to a grant of voluntary departure, the prior order of removal shall be reinstated and is not subject to reopening or review. The statute continues to add that the alien may not apply for any form of relief, and shall be removed pursuant to the reinstated removal order.

Regulations found in 8 C.F.R. 241.8 list the three factors that the immigration officer should ascertain in order to establish whether an alien should be subject to reinstatement of removal:

1. Whether the alien has been subject to a prior order of removal;
2. Verification of the alien’s identity to confirm whether the alien in question is the alien was subject to a prior order of removal;
3. Whether the alien entered the United States unlawfully.

Provided that the immigration officer determines that the alien in question was subject to a prior order of removal and that the alien in question had reentered the United States unlawfully, the immigration officer will notify the alien of the decision to reinstate the prior removal order and provide the alien with the opportunity to make a written or oral statement contesting the decision. The officer has discretion to consider whether anything in the alien’s statement warrants reconsideration of the decision to reinstate the prior removal order.

Provided that the alien cannot demonstrate that he or she was not subject to a prior removal order, did not reenter the country unlawfully, or otherwise should not be subject to reinstatement of removal, the alien will receive a Form I-871 “Notice of Intent/Decision to Reinstate Prior Order” and be placed in reinstatement of removal proceedings.

It is important to understand that “removal” in both the statute and regulations has been found to encompass exclusion, deportation, removal, expedited removal [see article], and stipulated removal.1 Entries that are procedurally legal, but otherwise illegal due to a prior removal order, may trigger reinstatement of removal.2 Furthermore, pursuant to the U.S. Supreme Court decision in Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) [PDF version], reinstatement of removal applies where the reentry occurred before the effective date of the reinstatement of removal statute (April 1, 1997). However, the Court left open in Fernandez-Vargas the question of whether reinstatement may be applied to an alien who had applied for relief from removal prior to April 1, 1997. Circuit Courts have split on the question.3

Reinstatement of Removal: Procedures and Remedies

Under certain scenarios, an alien may be able to argue that he or she should not be subject to reinstatement of removal. The most obvious scenarios are if the alien can demonstrate that he or she did not reenter illegally, was not subject to a prior removal order or previously removed, or is a U.S. citizen [follow these three links to learn more about scenarios in which an alien may actually be entitled to U.S. citizenship].

Where it is ultimately decided that an alien is subject to reinstatement of removal, the alien does not have a right to a hearing before an immigration judge [8 C.F.R. § 241.8(a)].4 However, there are limited circumstances in which an alien who cannot demonstrate that he or she 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 seek remedy from reinstatement of removal.5

An alien subject to reinstatement of removal may seek withholding of removal and a claim based upon the Convention Against Torture (CAT)6 by attempting to demonstrate that he or she would face a high likelihood of torture upon removal. The alien may attest to having a fear of persecution if he or she is returned to home country. In this scenario, the alien will be granted a credible fear interview with an asylum officer [follow this link to learn more about credible fear interviews as described in our article about expedited removal] . If the asylum officer determines that the alien does not have a credible fear of persecution or torture, the alien may obtain review from an immigration judge. However, it is important to note that asylum may be barred if the alien is subject to a mandatory bar to applying or being granted asylum.7v The alien may lodge a constitutional or legal challenge against the original removal proceeding.8
Nationals of Haiti, Nicaragua, El Salvador, Guatemala, Cuba, or certain Eastern European Countries who are eligible for adjustment of status under section 902 of HRIFA or an alien who is eligible for adjustment of status under sections 202 or 203 of NACARA [see article] may not be subject to reinstatement of removal unless the adjustment of status application is ultimately denied.

Reinstatement of Removal Advice

It is imperative that an alien who may be subject to reinstatement of removal contact an experienced immigration attorney immediately in order to explore any and all possibly available forms of relief from reinstatement of a prior removal order. While there is certainly no guarantee that a remedy for the alien will be available, an experienced immigration attorney will help the alien explore all of his or her options. An experienced immigration attorney may help the alien demonstrate that he or she was not previously removed or did not previously depart under a grant of voluntary departure under a removal order, that the alien’s reentry was not illegal, or even that the alien is actually a U.S. citizen. If the alien is issued a reinstatement of removal order, an experienced immigration attorney may help the alien advance a fear of persecution or torture claim where applicable, challenge the prior removal order, or, if the alien is eligible for certain forms of relief under HRIFA and NACARA, help the alien obtain one of those forms of relief from reinstatement.

  1. Kurzban 564, citing Warner v. Ashcroft, 381 F.3d 534, 537-48 (6th Cir. 2004); Delgado v. Mukasey, 516 F.3d 65, 67 (2d Cir. 2008); Ramierez-Molina v. Ziglar, 436 F.3d 508, 510 (5th Cir. 2006)
  2. Kurzban 565, citing Martinez v. Johnson, 740 F.3d 1040, 1043 (5th Cir. 2014) [deceiving immigration officers at border does not constitute permission to reenter]; Tamayo-Tamayo v. Holder, 725 F.3d 950 (9th Cir. 2013) [alien admitted on fraudulent “Green Card” is subject to reinstatement].
  3. Kurzban 566, citing Valedez-Sanchez v. Gonzales, 485 F.3d 1084 (10th Cir. 2007) [where person married and adjusted status before effective date, reinstatement was impermissibly retroactive]; Ixcot v. Holder, 646 F.3d 12-2, 1213 (9th Cir. 2011) [same with regard to asylum application prior to effective date]; but see Accord Molina Jerez v. Holder, 625 F.3d 1058, 1069-73 (8th Cir. 2010) [was not impermissibly retroactive to asylum claim filed before effective date where it was decided by legacy INS].
  4. Kurzban 565, e.g. citing Ponta-Garcia v. Att’y Gen. of the U.S., 557 F.3d 158, 161-64 (3d Cir. 2009)
  5. Kurzban 1626, citing INA § 242(b)(1); Lemos v. Holder, 636 F.3d 365 (7th Cir. 2011)
  6. Kurzban 565, citing 8 C.F.R. §§ 208.31, 241,8(d)
  7. Kurzban 565, Herrera-Molina v. Holder, 597 F.3d 128, 138-40 (2d Cir. 2010)
  8. Kurzban 565, e.g. citing Debato v. Att’y Gen. of the U.S., 505 F.3d 231 (3d Cir. 2007); Ramirez-Molina v. Ziglar, 436 F.3d 508, 513-14 (5th Cir. 2006)

Resources and Materials:

Kurzban, Ira J. Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 565-66, Print. Treatises & Primers.