Reinstatement of Removal Orders: Process, Criteria

Introduction

Reinstatement of removal orders is a critical aspect of U.S. immigration law that affects thousands of individuals each year. This process allows immigration authorities to reinstate a previous order of removal against an individual who has reentered the United States illegally after being deported, excluded, or removed. Understanding the intricacies of this process is essential for those who may be subject to such orders, as well as for legal professionals working in immigration law.

Historical Context and Legal Background

The concept of reinstatement of removal orders has its roots in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). This legislation significantly altered the landscape of immigration enforcement by introducing more stringent measures for dealing with individuals who reenter the United States after being removed.

Prior to IIRIRA, individuals who reentered the country after deportation were typically placed in new removal proceedings. However, the introduction of reinstatement provisions streamlined the process, allowing immigration authorities to reinstate the original removal order without the need for a new hearing before an immigration judge.

Current Legal Framework

The legal basis for reinstatement of removal orders is found in Section 241(a)(5) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1231(a)(5). This provision states that if 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.

The Department of Homeland Security (DHS), specifically Immigration and Customs Enforcement (ICE), is responsible for implementing the reinstatement process. The Executive Office for Immigration Review (EOIR), which houses the immigration courts, plays a limited role in reinstatement cases, as these matters generally do not involve new hearings before immigration judges.

Key Components of the Reinstatement Process

Identification and Apprehension

The reinstatement process typically begins when an individual is identified by immigration authorities as having reentered the United States illegally after a previous removal. This identification can occur through various means, including:

• Encounters with law enforcement
• Worksite enforcement actions
• Border apprehensions
• Routine immigration checks

Verification of Prior Removal Order

Once an individual is identified, ICE officers must verify the existence of a prior order of removal. This involves checking immigration databases and obtaining the individual's immigration file (A-file) to confirm the details of the previous removal.

Notice of Intent to Reinstate

If a prior removal order is confirmed, the individual is served with a Notice of Intent to Reinstate Prior Order (Form I-871). This document informs the individual of the government's intention to reinstate the previous removal order and provides an opportunity to contest the reinstatement.

Opportunity to Contest

The individual has the right to make a statement contesting the reinstatement. However, the grounds for contesting are limited to:

1. Denying that they are the person named in the prior order
2. Claiming that they were not previously removed
3. Demonstrating that they have a lawful basis for reentry

It's important to note that this is not a full hearing, and the individual does not have the right to appear before an immigration judge at this stage.

Final Reinstatement Order

If the individual does not successfully contest the reinstatement, or if they waive their right to make a statement, ICE will issue a final reinstatement order. This order has the effect of reviving the original removal order, making it immediately executable.

Criteria for Reinstatement

For a removal order to be eligible for reinstatement, the following criteria must be met:

1. The individual must have been subject to a prior order of removal, deportation, or exclusion.
2. The individual must have left the United States under that order.
3. The individual must have reentered the United States illegally.

It's crucial to note that the law does not set a time limit on when a prior removal order can be reinstated. Even if an individual has been living in the U.S. for many years since their illegal reentry, they may still be subject to reinstatement.

Rights and Responsibilities

Rights of Individuals Subject to Reinstatement

While the reinstatement process is more limited than regular removal proceedings, individuals still have certain rights:

1. The right to contest the factual basis for reinstatement
2. The right to seek withholding of removal or protection under the Convention Against Torture if they fear persecution or torture in their home country
3. The right to be represented by counsel (at no expense to the government)

Responsibilities of Immigration Authorities

Immigration authorities have specific responsibilities in the reinstatement process:

1. Properly identifying individuals subject to reinstatement
2. Providing notice of intent to reinstate
3. Allowing the individual an opportunity to contest the reinstatement
4. Conducting a reasonable fear interview if the individual expresses a fear of return to their home country

Common Issues and Challenges

Limited Avenues for Relief

One of the most significant challenges in reinstatement cases is the limited availability of relief. Individuals subject to reinstatement are generally ineligible for:

• Voluntary departure
• Cancellation of removal
• Adjustment of status

This restriction can create hardships, especially for individuals with long-standing ties to the United States or those with U.S. citizen family members.

Reasonable Fear Determinations

If an individual expresses a fear of return to their home country, they must be referred for a reasonable fear interview. This process can be challenging, as the standard for establishing a reasonable fear is higher than the credible fear standard used in initial asylum screenings.

Detention During Reinstatement Proceedings

Many individuals facing reinstatement of removal are subject to mandatory detention. The Supreme Court addressed this issue in Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021), holding that individuals with reinstated removal orders who are pursuing withholding-only proceedings are subject to detention under 8 U.S.C. § 1231, which does not provide for bond hearings.

Case Studies and Notable Examples

Matter of W-X-C-, 26 I&N Dec. 156 (BIA 2013)

In this case, the Board of Immigration Appeals (BIA) clarified that an individual subject to reinstatement of a prior order of removal is not eligible for adjustment of status under section 245(i) of the INA, even if they have an approved visa petition.

Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006)

The Supreme Court addressed the retroactive application of the reinstatement provision, holding that it could be applied to individuals who reentered the United States before IIRIRA's effective date but remained in the country after that date.

Best Practices and Compliance Strategies

For individuals who may be at risk of reinstatement:

1. Seek legal counsel before attempting to reenter the United States after a removal.
2. If already in the U.S., consult with an immigration attorney to explore potential options for regularizing status.
3. Maintain documentation of any changed circumstances that might support a claim for protection from removal.

For legal practitioners:

1. Thoroughly review the client's immigration history to identify any prior removal orders.
2. Explore all potential avenues for relief, including withholding of removal and CAT protection.
3. Be prepared to act quickly in contesting reinstatement or requesting a reasonable fear interview.

Recent Developments and Proposed Changes

The reinstatement process has been subject to ongoing debate and legal challenges. Some recent developments include:

1. Proposals to expand the use of expedited removal, which could increase the number of individuals subject to reinstatement.
2. Litigation challenging the constitutionality of the reinstatement process, particularly regarding the limited role of immigration judges.
3. Advocacy efforts to create more avenues for relief for long-term residents subject to reinstatement.

Resources for Further Information

For more detailed information on reinstatement of removal orders and related topics, the following resources are available:

1. Executive Office for Immigration Review: An Agency Guide - Provides comprehensive information on EOIR procedures and policies.
2. ICE Detention and Removal Operations Field Policy Manual - Offers detailed guidance on ICE removal procedures.
3. U.S. Department of Justice Criminal Resource Manual on Reentry After Deportation - Provides information on criminal penalties related to illegal reentry.

These resources offer valuable insights into the legal and procedural aspects of reinstatement of removal orders, as well as broader context on U.S. immigration enforcement policies.