In general, most undocumented and illegal aliens apprehended inside the United States are entitled to a hearing before an immigration judge under section 240 of the Immigration and Nationality Act. However, this is not always the case. In some circumstances, a person who is caught by Immigration and Customs Enforcement may not be afforded an opportunity as procedural matter to see a judge, unless the individual is able to assert some sort of legal claim. It is critical to understand this because in many cases, a person will need to appreciate the risks of a certain course of action to remedy his/her status. For example, many people are not aware of or understand the doctrine of reinstatement. The regulations pertaining to reinstatement of removal orders can be found in Section 241(a)(5) of the Immigration and Nationality Act. Under the statute:
If the Attorney General finds that 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 and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall be removed under the prior order at any time after the reentry.
What this essentially means is that if the government apprehends someone who has illegally reentered after having been previously removed, it may elect to administratively reinstate the prior order from its original date. Practically, this has many important consequences. The Department of Homeland Security will assert that since there is already an effective removal order, the individual is foreclosed from seeing a judge. Additionally, there are certain forms of relief that the individual may have possibly been eligible for that are no longer available. For example, the individual would be statutorily barred from applying for cancellation of removal, asylum and adjustment of status (although there are certain exceptions). Furthermore, the government is likely to vigorously oppose any endeavor to reopen a removal order, especially once the reinstatement has already taken place.
Notwithstanding the dire effect of a reinstatement, there are some limited things that a person in this situation can do. Firstly, the individual is afforded thirty days to have the order reviewed by the court of appeals if he/she files an appeal. (However, the person must assert this right; it is not granted automatically.). Secondly, if an individual served with a reinstatement order expresses a fear of going back to his/his country, he/she may be entitled to a “reasonable fear” interview conducted by the asylum office. If the person is determined to have a reasonable fear of harm/persecution, he/she will be referred to immigration court for a withholding of removal claim/Convention Against Torture, depending on the basis of the claim. Additionally, reinstatement will not always apply. Every element needs to be satisfied, such as a prior order, departure, and illegal re-entry. For instance, someone who has been ordered deported or removed but never left the US is not subject to a reinstatement of removal order. If someone was denied entry but not summarily removed-ie., through an expedited removal order-and then sneaks into the country without inspection, he/she is also not subject to reinstatement. There are also statutory and judicial exemptions which cover certain protected classes like CSS, LULAC, NACARA, and HRIFA.
In many ways, dealing with a reinstatement order when it is already a fait accompli places the individual at a severe disadvantage given how the law handicaps any attempts to reverse it. The better, more prudent strategy is to determine at the outset whether an individual is exposed to such a charge. This involves securing a complete copy of the individual’s immigration records and understanding his/her case history. If, after careful analysis, it is determined that a person is vulnerable to a charge of reinstatement, that person can make an informed decision whether to risk exposure.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.