• Reinstatement of Removal
  • November 10, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Introduction to Reinstatement of Removal
    The Department of Homeland Security (DHS) has discretion to reinstate a prior removal order when an alien reenters the United States illegally after having been removed previously or having left under a grant of voluntary departure under a removal order.[1] If an alien is subject to summary removal, he or she will not be entitled to a hearing before an immigration judge. Depending on the situation, there may be limited forms of relief available to the alien from reinstatement of removal.

    Reinstatement of Removal Procedures
    Section 241.8 of Title 8 of the Code of Federal Regulations (C.F.R.) lists the three factors that the immigration offer at the border must consider in order to determine whether an alien is subject to reinstatement of removal:
    1. Whether the alien has been subject to a prior order of removal;
    2. Verification of the alien’s identity to confirm whether the alien in question is the alien who was subject to a prior order of removal;
    3. Whether the alien entered the United States unlawfully.
    If it is determined that the alien is subject to reinstatement of removal, he or she will be notified of the decision and provided with the opportunity to given an oral statement contesting the decision. USCIS will have discretion to consider whether anything in the alien’s statement warrants reconsideration of the decision to reinstate a prior removal order.

    Courts have found that “removal” for purpose of reinstatement of removal encompasses exclusion, deportation, removal, expedited removal, and stipulated removal.[2]

    Reinstatement of Removal Remedies

    If an alien cannot demonstrate that he or she did not reenter illegally, was not subject to a prior removal order or removed previously, or is a U.S. citizen, he or she may still be able to contest reinstatement of removal. Although an alien who has a prior removal order reinstated is not entitled to a hearing before an immigration judge, he or she will have 30 days from the issuance of a final order of removal to seek relief from reinstatement of removal.[3]

    The following are ways that an alien subject to reinstatement of removal may seek relief in those 30 days:
    • Apply for withholding of removal and a claim based upon the Convention Against Torture.[4]
    • Lodge a constitutional or legal challenge against the original removal proceeding.[5]
    • If the alien is a national of Haiti, Nicaragua, El Salvador, Guatemala, or certain Eastern European countries, he or she may be eligible for adjustment of status under section 902 of HRIFA or section 202 or 203 of NACARA. Such an alien cannot have a prior removal order reinstated unless the adjustment of status application is ultimately denied.
    Reinstatement of Removal Advice
    An alien who is subject to reinstatement of removal should contact an experienced immigration attorney immediately. Given that the forms of relief from reinstatement of removal are limited, there is no guarantee that an alien will be eligible for any. However, an experienced immigration attorney will be able to explore all of an alien’s available options for relief, and pursue one if the facts of the alien’s case support it.

    1. INA § 241(a)(5)
    2. Warner v. Ashcroft, 381 F.3d 534, 537-48 (6th Cir. 2004);Delgado v. Mukasey, 516 F.3d 65, 67 (2d Cir. 2008); Ramierez-Molina v. Ziglar, 436 F.3d 508, 510 (5th Cir. 2006)
    3. INA § 242(b)(1); Lemos v. Holder, 636 F.3d 365 (7th Cir. 2011)
    4. Note that the alien may be subject to a mandatory bar to applying for or being granted asylum. See Herrera-Molina v. Holder, 597 F.3d 128, 138-40 (2d Cir. 2010)
    5. Debato v. Att'y Gen. of the U.S., 505 F.3d 231 (3d Cir. 2007); Ramirez-Molina v. Ziglar, 436 F.3d 508, 513-14 (5th Cir. 2006)