What is an order of Reinstatement?
An order of "reinstatement" is codified in the Immigration and Nationality Act ("INA") under Section 241(a)(5)
and we show you where you may find it in the INA just in case you wish to read it by yourself. It is one of those rare statutes that are written in a simple straightforward manner, uncomplicated. The terms of this statute may be more simply explained as follows: if you were once deported from the United States, whether as a result of an order issued by an immigration judge in a deportation or removal process or in a summary(*) decision by a Border Patrol agent at a border, and thereafter, the government finds you physically present in this country, unless you can prove that your reentry
has been authorized, the old order of deportation can be reinstated
and you will be removed
once again, albeit this time, you will not be given a deportation hearing before an immigration judge.
- (*) A summary decision by a Border Patrol agent has the same legal consequences as does an order from an immigration judge in regular deportation (or removal) proceedings even though, unfortunately, the two processes are vastly different in their adjudication. As else explained in this website in the "summary removal orders" page, regular deportation or removal proceedings conducted before an immigration judge in a court of administrative law allows a noncitizen to receive many important protections (aimed at complying with the constitutional principle of "due process" to which all persons inside the United States are entitled to receive) such as-- legal representation by a qualified attorney; right to present supporting evidence; right to cross-examine adverse witnesses and many other legal protections that constitute the hallmark of our American system of justice. These protections do not exist either in practice or in theory when the noncitizen is in summary proceedings at or near the border in front of an agent of the Border Patrol. Our comment below referencing the reasonableness of the reinstatement proceedings, do not include or apply to reinstatement orders arising from these types of summary decisions.
The rule governing "reinstatement orders" at face value then seems very logical and reasonable. A noncitizen that was once deported after the conclusion of a deportation hearing (including, after having exhausted all administrative and judicial review processes) where the noncitizen received all of the procedural due process safeguards that are owed to the noncitizen under our legal system involving due process of law, should then not be entitled to receive a whole new due process procedure of a full hearing before an immigration judge, each and every time that the noncitizen reenters the United States illegally. Not only it would be abusive of our generous American judisprudence but it will also be wasteful of our economic resources and even make a mockery of our immigration laws if each and every time, a noncitizen could avoid or prolong her deportation by insisting on the right to a full and fair hearing, once already given and received.
But you would be wrong to believe this for example in instances where the noncitizen was never given the full and fair hearing in the first instance during the initial deportation process. We explained in the preceding page the problems that may arise from certain "summary removal" processes or how those processes are implemented on a case by case basis, where a noncitizen will be expelled (deported, removed) from the United States summarily without ever receiving a full and fair hearing before an immigration judge. The idea we wish to market here is that a removal (deportation or expulsion) process will be as good as the individuals enforcing it can be fully compliant with the letter and spirit of the law. But what "seals the deal" against that premise here (what makes these processes flawed and dangerous) is the lack of any comprehensive administrative or judicial review. As a result, you may have a well-intended immigration officer ordering a noncitizen removed (a decision which may mean life or death to the noncitizen) erroneously, or you may have a disgruntled immigration officer ordering such noncitizen removed arbitrarily but because the noncitizen has no right to comprehensive review of the decision, these human errors will not be detected or corrected by an impartial adjudicator.
And the proof is in the pudding! Consider now the review process afforded to a noncitizen who is the subject of an order of reinstatement. First, notice that Congress left totally out (did not include) any language in the reinstatement provision that expressly and clearly extended a right to receive review (administrative or judicial) arising from an order of reinstatement. That is correct. In enacting the reinstatement provision in the 1996 law, there was a complete absence of any administrative review process and no judicial review process tied to the reinstatement provision. None. The federal courts indeed fashioned a right to receive judicial review (from an order of reinstatement) by interpreting such orders to be the equivalent of a "final order" of removal, which by statute only refers to orders of removal arising from a decision entered by the BIA. But even then, the courts have approved the limitation that exists on a judicial review of a reinstatement order, the specific factors of which are addressed below.
An order of reinstatement is an order that is made by a low ranking ICE agent reinstating a prior order of deportation or removal effected against that same noncitzen receiving the reinstatement order. To bring an example and provide more content to this statement, assume that a noncitizen was taken into custody by the legacy Immigration and Naturalization Service (now the Immigration and Customs Enforcement or ICE) in 1994.
Assume further that after the noncitizen was placed in deportation proceedings before an immigration judge (just so that you know—only immigration judges were empowered with making a legal finding and ordering that a noncitizen be subject to deportation before 1996) the immigration judge ordered that she be deported, she did not appeal the decision of the immigration judge and ICE deported her shortly thereafter to her country of nationality.
Assume also that she reenters the United States in 2002 and four years later she marries a citizen of the United States, applies for adjustment of status based on her marriage to that US citizen husband, and appears with her husband for an interview on her application in 2006. During the interview, the interviewing officer asks her three questions: he asks (1) whether she was deported in 1996; (2) confirms that she is the same person that was deported in 1996, and (3) whether she has any proof that she entered the US legally in 2002.
If she responds affirmatively to the first two questions and negatively to the last question (i.e., concedes that she did not apply for permission to reenter in 2002) the interviewing officer with the assistance of ICE agents will take her into custody immediately, and may now issue a "reinstatement order" of deportation, or removal, based on the prior deportation in 1996.
This is what a reinstatement of a prior order of deportation or removal consists of. A finding by a low ranking ICE officer that the noncitizen that is in front of him is (1) a noncitizen who was once removed from the United States (physically removed or deported), (2) the same noncitizen who is now present before the ICE officer (i.e., confirm her identity) and (3) ascertain that she reentered the US without prior authorization.
If this happens to you, you must immediately file a petition for review before the United States Court of Appeals having jurisdiction over the place where the reinstatement order was issued, and request the court to issue a stay. Otherwise, you could be deported immediately
If the order of reinstatement by an officer of the ICE is not immediately appealed to a federal court (by way of a petition for review) and a stay is not also requested in conjunction with review of the petition, the ICE agent can effect the immediate deportation of the noncitizen without ever having to go back to an immigration court in order to obtain a new order from an immigration judge allowing the ICE to deport that noncitizen.
An order of reinstatement is based on the existence of those three (3) preconditions stated above. First, the ICE agent must investigate the records of the Department of Homeland Security ("DHS") and/or the legacy INS if applicable and determine from those records that the noncitizen was once before deported from the United States. As a caveat, you should know that not all noncitizens whom have been ordered deported by an immigration judge have in fact been deported from the United States. This is because an immigration judge makes a finding on the records of the agency that a noncitizen is subject to deportation while an ICE agent is in charge of carrying-out the actual deportation order of the immigration judge.
Hence, there are large numbers of noncitizens whom although have been determined to be subject to deportation in the past, for various reasons, either ICE or the legacy INS agents were never able to, or did not get around to effect the actual physical removal of the noncitizen. What this means is that those noncitizens are exempt from consideration as noncitizens eligible for issuance of a reinstatement order because one of the three (3) factors involved in the prerequisites for a reinstatement order is missing—the prior physical deportation of the noncitizen.
Second, the ICE agent must determine that the noncitizen that has just been apprehended is the same person that the noncitizen who was previously deported. And third, the ICE agent must determine from the same agency records that the noncitizen has reentered the United States without permission. If any of these 3 preconditions are not clearly established within the agency records, the ICE agent cannot issue a reinstatement order.
But when the ICE agent is able to fulfill these 3 preconditions, the ICE agent will reinstate the order against the noncitizen and will be authorized to summarily (without a formal hearing before an immigration judge) deport, remove or exclude such noncitizen from the United States without much ado.
What is the principle behind this provision?
If a noncitizen has previously been granted a hearing before and immigration judge once, and at the conclusion of that hearing, the immigration judge orders the noncitizen deported, removed or excluded from the United States, then if the ICE agent comes across the same individual inside the United States and determines that he/she has reentered without prior government authorization after the noncitizen was once deported, removed or excluded, then ICE should no longer be required to place him again in removal proceedings because the noncitizen has already been afforded a formal hearing in compliance with due process.
Is there anything at all the noncitizen can do to seek review of a reinstatement order?
Yes. There are at least two (2) actions that the noncitizen can take to seek review before ICE effects his or her removal from the United States without a formal hearing. First, a noncitizen who fears returning to his home country or place of last habitual residence outside of the United States on account of one or more of the five (5) grounds for eligibility for asylum, withholding of removal or restriction on removal under Article 3 of the Convention Against Torture, may receive administrative review (and later, judicial review) of the decision of the officer of ICE reinstating his/her prior order of deportation, removal or exclusion.
In addition, the same noncitizen can seek judicial review of the order of the officer of ICE reinstating his/her prior order of removal by filing a petition for review (8 USC § 1252) before the appropriate court of appeals having jurisdiction over the place where the order of reinstatement is being issued by ICE. Like in nearly each and all other administrative or judicial processes involving adverse immigration orders, the noncitizen must act promptly or he/she will lose his/her statutory right to review. The petition for review must be sought within 30 days from the date of the notice to the alien that the officer intends to reinstate a prior order of deportation, removal or exclusion.
Bewarned, however, that ICE may not extend the noncitizen the 30 days required for the noncitizen to file a petition for judicial review before taking the necessary steps to remove him or her.
A noncitizen should not count on the premise that ICE will not act sooner by taking action designed to effect the noncitizen's actual removal from the United States even before the 30 days to file a petition for review has expired. Thus, it is, once again, extremely important that the noncitizen take action immediately upon receiving notice of the government's intent to "reinstate" the prior order of deportation, removal or exclusion. This may happen for any number of reasons, none of which is openly designed to strip the noncitizen of his or her rights to judicial review.
Simply, it happens just because it does.