Can they deport me again?
Question: I was deported years
ago and could not stay away from my wife any longer. I reentered the
Answer: Removal pursuant to
§241(a)(5) of the Immigration and Nationality Act (INA) – the reinstatement of
removal provision – accounts for 40% of all removals nationwide, and two-thirds
of nationwide reinstatements take place within the Ninth Circuit.
Question: What is reinstatement
of removal?
Answer: Reinstatement of removal
is the term for removal pursuant to INA §241(a) (5). Reinstatement of removal
orders against those illegally reentering if the Attorney General finds that an
alien has reentered the
Reinstatement orders (or orders
of reinstatement) are issued by low-level immigration officers, not immigration
judges. The orders may be executed within hours or days. Due to the lack of a
hearing and speed at which the orders are executed and issued, removal under
INA §241(a)(5) is sometimes called summary removal.
Significantly, individuals
subject to INA §241(a)(5) are “not eligible and may not apply for any relief”
under the Immigration and Nationality Act.
Question: Who is subject to
reinstatement of removal?
Answer: Noncitizens who return to
the United States illegally after having been removed under a prior order of
deportation, exclusion, or removal are subject to removal under §241(a)(5)
unless they meet a statutory or judicial exemption.
Question: Who is statutorily
exempt from reinstatement of removal under INA §241(a)(5)?
Question: Congress has enacted
legislation that specifically exempts the following individuals from being
subject to reinstatement of removal: Individuals applying for adjustment of
status under INA §245A (the legalization program) who are covered by certain
class action lawsuits. Nicaraguans and Cuban applicants for adjustment under
§202 of the Nicaraguan Adjustment and Central American Relief Act of 1997
(NACARA). Salvadoran, Guatemalan, and Eastern European applicants under NACARA
and Haitian applicants for adjustment under the Haitian Refugee Immigration
Fairness Act of 1998 (HRIFA).
Question: Who is judicially
exempt from reinstatement of removal under INA §241(a)(5)?
Answer: Litigation in the courts
of appeals has resulted in a number of case law exemptions to §241(a)(5). The First,
Seventh, and Eleventh Circuits who applied for discretionary relief before
April 1, 1997; and the Ninth Circuit who filed an application for adjustment of
status and application for permission to reapply for admission to the United
States after deportation or removal (aka I-212 waiver) prior to the
reinstatement determination.
Question: After issuance of a
reinstatement order, can a person apply for any “relief” from removal?
Answer: A final reinstatement
order triggers the bar to relief in INA §241(a)(5). However, DHS has previously
taken the position that withholding of removal is not a form of relief because
it is mandatory, not discretionary. Thus, if a person expresses a fear of
return during the reinstatement process, the regulations provide for an
interview with an asylum officer. If an asylum officer determines that the
person has a “reasonable fear of persecution or torture,” he or she may apply
for withholding before an immigration judge.
Question: If the person did not
leave under the order of deportation, can it be reinstated?
Answer: No. If the client has not
departed since the prior order was issued, then he or she cannot be subject to
reinstatement under INA §241(a) (5) because the statute requires an illegal
reentry “after having been removed or having departed voluntarily, under an
order of removal.”
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