Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I was deported years ago and could not stay away from my wife any longer. I reentered the U.S. illegally and am now reunited with my wife. Can they deport me again?

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 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 chapter, and the alien shall be removed under the prior order at any time after the reentry.

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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