ORDERS OF REINSTATEMENT
An order of "reinstatement" is codified in the Immigration and Nationality Act under Section 241(a)(5) and is an order that can be made by an immigration officer delegated with authority to enter such orders and which, once it is entered against an alien present in the United States allows the US ICE to summarily (without a formal hearing before an immigration judge) deport, remove or exclude an alien from the United States without much ado.
What is the principle behind this provision?
If an alien has previously been granted a hearing before and immigration judge once, and at the conclusion of that hearing, the immigration judge orders the alien deported, removed or excluded from the United States, then if the US ICE comes across the same individual inside the United States and determines that he/she has reentered without prior government authorization after the alien was once deported, removed or excluded, then US ICE should no longer be required to place him again in removal proceedings because he/she has already been afforded a formal hearing in compliance with due process.
Is there anything at all the alien can do to seek review?
Yes. There are at least two (2) actions that the alien can take to seek review before the US ICE effects his or her removal from the United States without a formal hearing. First, an alien 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 III of the Convention Against Torture, may receive administrative review (and later, judicial review) of the decision of the officer of the US ICE reinstating his/her prior order of deportation, removal or exclusion.
In addition, the same alien can seek judicial review of the order of the officer of the US 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 US ICE. Like in nearly each and all other administrative or judicial processes involving adverse immigration orders, the alien 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 US ICE may not extend the alien the
30 days before taking the necessary steps to remove him or her.
An alien should not count on the premise that US ICE will not act sooner by taking action designed to effect the alien'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 alien 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 alien of his or her rights to judicial review. Simply, it happens just because it does.
