IIRAIRA established a new provision for reinstatement of a prior removal order against a noncitizen who has illegally re-entered the United States after having been removed.[409]  This provision leads to virtually automatic removal without the reopening of proceedings or judicial review, and applies to prior orders of removal under any ground. 

 

The Ninth and Tenth Circuits have held that this provision does not violate due process.[410]  A circuit split is emerging, however, as to whether Congress intended to apply this provision retroactively to entries prior to April 1, 1997, the effective date of IIRAIRA, with the Third, Sixth, Ninth and Eleventh Circuits prohibiting retroactive application, at least in some situations,[411] and the First, Fourth, Seventh, Eighth, and Tenth Circuits disagreeing, at least in part.[412]  The Ninth Circuit did not decide whether the reinstatement provision could be applied to pre-IIRAIRA deportation or exclusion orders.[413]  Because each of the five petitioners in Castro-Cortez had re-entered the U.S. prior to April 1, 1997, the court stated it need not reach that issue.  Thus, an immigrant with a post-April 1, 1997 re-entry, but a pre-IIRAIRA deportation/exclusion order, may bring a challenge against retroactive application of INA § 241(a)(5).  Judicial review of collateral attack on a reinstatement order is limited.[414]

[409] INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (2001). 

[410] Garcia-Marrufo v. Ashcroft, 376 F.3d 1061 (10th Cir. July 21, 2004); Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169 (9th Cir. 2001).

[411] Dinnall v. Gonzales, 421 F.3d 247 (3d Cir. Sept. 1, 2005) (reinstatement of prior order of deportation under INA § 241(a)(5) had an impermissibly retroactive effect on noncitizen who re-entered the United States prior to passage of IIRAIRA); Morales-Izquierdo v. Ashcroft, 388 F.3d 1299 (9th Cir. Nov. 19, 2004) (reinstatement procedures at 8 C.F.R. § 241.8 violate the Immigration and Nationality Act, by denying access to a removal hearing: “The plain statutory language, supported by the structure of the legislation, provides that an immigration judge must conduct all proceedings for deciding the inadmissibility or deportability of an alien.”); Sarmiento Cisneros v. U.S. Att’y Gen., 381 F.3d 1277 (11th Cir. Aug. 27, 2004) (Congress did not clearly express an intent to apply INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) retroactively to allow reinstatement of deportation orders issued prior to that statute’s effective date where noncitizen applied for adjustment of status prior to reinstatement); Gallo-Alvarez v. Ashcroft, 266 F.3d 1123 (9th Cir. 2001); Castro-Cortez v. INS, 239 F.3d 1037, 1050-52 (9th Cir. 2001) (where noncitizen re-entered the United States prior to April 1, 1997, or re-entered United States legally); Bejjani v. INS, 271 F.3d 670 (6th Cir.  2001).  But see Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. Aug. 13, 2004) (reinstatement provision of INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) is not impermissibly retroactive when noncitizen entered illegally and failed to apply for adjustment of status before reinstatement).

[412] Ochoa-Carrillo v. Gonzales, 437 F.3d 842 (8th Cir. Feb. 15, 2006) (8 C.F.R. § 241.8 represents a reasonable interpretation of INA § 241(a)(5), 8 U.S.C. § 1231(a)(5); reinstatement procedures did not violate petitioner’s due process rights); Labojewski v. Gonzales, 407 F.3d 814 (7th Cir. May 4, 2005) (not impermissibly retroactive when applied to a noncitizen who re-entered the United States before, but applied for adjustment of status after, the Act’s effective date); Fernandez-Vargas v. Ashcroft, 394 F.3d 881 (10th Cir. Jan. 12, 2005) (there is no impermissible retroactive effect where both the filing of the application to adjust status, and the marriage upon which the application is based, occurred after the effective date of the reinstatement statute); Berrum-Garcia v. Comfort, 390 F.3d 1158 (10th Cir. Nov. 23, 2004) (noncitizen who illegally re-entered United States after removal is barred from applying to adjustment of status when the agency has reinstated original order or removal under INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), regardless of whether application was filed before or after prior order has been reinstated by the agency); Lattab v. Ashcroft, 384 F.3d 8 (1st Cir. Sept. 14, 2004) (INA § 241(a)(5), 8 U.S.C. 1231(a)(5) reinstatement provision, added by IIRAIRA, is not impermissibly retroactive as applied to noncitizen who was deported and re-entered prior to IIRAIRA); Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 864 (8th Cir. Feb 13, 2002); Velasquez-Gabriel v. Crocetti, 263 F.3d 102 (4th Cir. 2001).  But see Faiz-Mohammad v. Ashcroft, 395 F.3d 799 (7th Cir. Jan. 26, 2005) (statute authorizing reinstatement of prior removal orders could not be applied retroactively).

[413] Castro-Cortez v. INS, 239 F.3d 1037 (9th Cir. Jan. 23, 2001).

[414] Ramirez-Molina v. Ziglar, 436 F.3d 508 (5th Cir. Jan. 12, 2006) (to grant review of collateral attack of prior deportation order in reinstatement case, the prior deportation proceedings must have resulted in a “gross miscarriage of justice”).

RELIEF - REINSTATEMENT OF REMOVAL ORDER - WHETHER REINSTATEMENT APPLIES TO NONCITIZEN WHO ENTERED THE UNITED STATES ILLEGALLY BEFORE THE EFFECTIVE DATE OF IIRAIRA
Fernandez-Vargas v. Gonzales, ___ U.S. ___ (Mar. 22, 2006) (granting certiorari to answer "whether and under what circumstances INA 241(a)(5) applies to an alien who reentered the United States illegally before the effective date of IIRAIRA, April 1, 1997.").

RELIEF - REINSTATEMENT OF REMOVAL - RETROACTIVITY
Fernandez-Vargas v. Gonzales, 548 U.S. ___ (2006) (INA 241(a)(5) applies to persons who illegally reentered prior to the April 1, 1997 effective date of IIRIRA, and who did not take any affirmative steps towards legalizing status before that date, because unlawful presence following reentry is a continuing act), reversing Bejjani v. INS, 271 F.3d 670 (6th Cir. 2001), Castro-Cortez et al. v. INS, 239 F.3d 1037 (9th Cir. 2001). http://laws.lp.findlaw.com/us/000/041376.html

BIA

OVERVIEW - REINSTATEMENT OF REMOVAL
Matter of WCB, 24 I. & N. Dec. 118 (BIA 2007)(Immigration Judge has no authority to reinstate a prior order of deportation or removal pursuant to INA 241(a)(5), 8 U.S.C. 1231(a)(5) (2000); noncitizen subject to reinstatement of a prior order of deportation or removal pursuant to INA 241(a)(5) has no right to a hearing before an Immigration Judge; Immigration Judge did not err in terminating removal proceedings as improvidently begun where the respondent was subject to reinstatement of his prior order of deportation). http://www.usdoj.gov/eoir/vll/intdec/vol24/3557.pdf

JUDICIAL REVIEW - POWERS OF IJ UPON REMAND BY BIA
Matter of MD, 24 I. & N. Dec. 138 (BIA 2007) (although the IJ cannot reconsider the prior decision of the BIA on whether to grant or deny a given form of relief, upon remand to the IJ for completion of background checks, the IJ can consider additional evidence regarding new or previously unconsidered relief if the evidentiary requirements for a motion to reopen have been met).

Second Circuit

REINSTATEMENT OF REMOVAL
Garcia-Villeda v. Mukasey, 531 F.3d 141 (2d Cir. Jul. 8, 2008) (reinstatement regulations, at 8 C.F.R. 241.8, constitute a valid interpretation of 8 U.S.C. 1231(a)(5), and does not contravene 8 U.S.C. 1229a; bar to collateral attack of prior removal order does not violate due process; petition did not qualify for and did not ask for consent to re-enter the United States, as required under 8 U.S.C. 1182(a)(9)(C)(i)(II) & (ii)).

REINSTATEMENT OF REMOVAL
Delgado v. Mukasey, 516 F.3d 65 (2d Cir. Feb. 7, 2008) (noncitizen inadmissible for illegal reentry after deportation, under INA 212(a)(9)(C), is ineligible to adjust status under the LIFE Act).

JUDICIAL REVIEW - HABEAS CORPUS - PETITION FOR REVIEW - REAL ID ACT PRECLUDES USING HABEAS FILED MORE THAN A YEAR AFTER ITS EFFECTIVE DATE AS PETITION FOR REVIEW
Wang v. Dep't of Homeland Sec., 484 F.3d 615 (2d Cir. April 19, 2007) (Habeas petition under 28 U.S.C. section 2241 challenging final order of removal, and filed more than a year after section 106 of the REAL ID Act of 2005 foreclosed the use of habeas corpus to review removal orders, is dismissed as: 1) transfer to the court of appeals was not available under the REAL ID Act because the petition was not pending when the Act became effective; 2) transfer was impermissible since the petition was untimely; 3) petitioner has alleged no facts that would make dismissal constitutionally suspect; and 4) since district courts may no longer review removal orders via habeas corpus, the case cannot be transferred back to the district court).

Third Circuit

REMOVAL PROCEEDINGS - REINSTATEMENT
Ponta-Garcia v. Attorney General of U.S., ___ F.3d ___, 2009 WL 415560 (3d Cir. Feb. 20, 2009) (order of reinstatement vacated and remanded for additional fact-finding; "Ponta-Garcia argues that even if the reinstatement procedures pass muster, they should not have been applied to him. He claims not only that the 1987 order of removal was invalidated by a court, but claims as well that he did not reenter the country illegally when he returned from his four-day visit to Canada in 1992 with what he says was a valid green card. If he is correct as to either or both of these claims-and there is some support for each-serious concerns are raised."); see Chacon-Corral v. Weber, 259 F.Supp.2d 1151, 1164 (D.Col.2003) ("Because deportation for unauthorized reentry under INA 241(a)(5) is under the original order of deportation, a determination that the original order was invalid renders 241(a)(5) inapplicable in a given case."); Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003) ("While we cannot revisit the validity of the original deportation order, we do have the authority to determine the appropriateness of its resurrection.").

REMOVAL PROCEEDINGS - REINSTATEMENT - OPEN QUESTION WHETHER FOUR-DAY PERSONAL TRIP OUTSIDE THE COUNTRY CONSTITUTES DEPARTURE UNDER AN ORDER OF REMOVAL
Ponta-Garcia v. Attorney General of U.S., ___ F.3d ___, 2009 WL 415560 (3d Cir. Feb. 20, 2009) (finding it a substantial question "whether leaving the country for a four-day personal trip constitutes "depart[ing] voluntarily, under an order of removal," as required by the statute. 8 U.S.C. 1231(a)(5) (emphasis added).").

REMOVAL PROCEEDINGS - REINSTATEMENT OF REMOVAL ORDER - REJECTING "UNREASONABLE CONSTRUCTION" CHALLENGE TO REINSTATEMENT REGULATION
Ponta-Garcia v. Attorney General of U.S., ___ F.3d ___, 2009 WL 415560 (3d Cir. Feb. 20, 2009) (regulation authorizing immigration officers, rather than immigration judges, to reinstate prior removal orders was a reasonable construction of 8 U.S.C. 1231(a)(5); "While this language prohibits relitigation of the merits of the original order of removal, it does not prohibit an examination of whether the original order was invalidated, or preclude judicial review of whether ICE met its obligations in making the reinstatement determination."), following Morales-Izquierdo v. Gonzales, 486 F.3d 484, 493-94 (9th Cir. 2007) (en banc); Lorenzo v. Mukasey, 508 F.3d 1278, 1283-84 (10th Cir. 2007); Ochoa-Carrillo v. Gonzales, 437 F.3d 842, 846 (8th Cir. 2006); De Sandoval v. Attorney General, 440 F.3d 1276, 1280-83 (11th Cir. 2006); Tilley v. Chertoff, 2005 WL 1950796, at *3 (6th Cir. Aug. 15, 2005); Lattab v. Ashcroft, 384 F.3d 8, 17-20 (1st Cir. 2004).

REMOVAL PROCEEDINGS - REINSTATEMENT OF REMOVAL ORDER - REJECTING DUE PROCESS CHALLENGE TO REINSTATEMENT REGULATION
Ponta-Garcia v. Attorney General of U.S., ___ F.3d ___, 2009 WL 415560 (3d Cir. Feb. 20, 2009) (holding regulation and statute, 8 U.S.C. 1231(a)(5), governing reinstatement of removal orders do not violate due process); accord, Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495-98 (9th Cir.2007) (en banc) ("Given the narrow and mechanical determinations immigration officers must make and the procedural safeguards provided by [the regulations], the risk of erroneous deprivation is extremely low.... While the regulation does not offend due process, we leave open the possibility that individual petitioners may raise procedural defects in their particular cases."); Lorenzo v. Mukasey, 508 F.3d 1278, 1284 (10th Cir. 2007); Tilley v. Chertoff, 2005 WL 1950796, at *4 (6th Cir. Aug. 15, 2005) ("We also hold that the reinstatement procedure offers adequate due process.... The reinstatement order asks only three factual questions. A judge is not needed to decide whether the alien was subject to a prior order of removal, nor whether the alien deported is the same alien as the one subject to reinstatement, not whether the alien re-entered the country illegally. And if the alien asserts that any of these decisions was incorrect, she may appeal the immigration officer's findings directly to the circuit court. To plead for additional process in this procedure is to forget how limited is its scope.").

JUDICIAL REVIEW - PETITION FOR REVIEW - FULL JUDICIAL REVIEW IS AVAILABLE FOR REINSTATEMENT OF REMOVAL ORDERS
Ponta-Garcia v. Attorney General of U.S., ___ F.3d ___, 2009 WL 415560 (3d Cir. Feb. 20, 2009) (holding full judicial review is available to a non citizen adjudged removable following reinstatement of removal procedures, so they do not violate due process on this basis); see United States v. Charleswell, 456 F.3d 347, 353 (3d Cir. 2006); Ponta-Garc[i]a v. Ashcroft, 386 F.3d 341, 342 (1st Cir. 2004) ("An order reinstating an earlier order of deportation is subject to review...."); 8 U.S.C. 1252 (providing for judicial review of final orders of removal); Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n. 3 (10th Cir. 2003) (finding that 8 U.S.C. 1252 covers review of reinstatement orders).

ILLEGAL REENTRY - SENTENCE
United States v. Hernandez-Gonzalez, __ F.3d __, 2007 WL 2051096 (3d Cir. July 19, 2007) (date that illegal re-entry offense commences, for purposes of calculating the criminal history score, is the date defendant entered the U.S., not the date that he was found by immigration authorities).

RELIEF - REINSTATEMENT OF DEPORTATION - JUDICIAL REVIEW - DUE PROCESS
United States v. Charleswell, 456 F.3d 347 (3d Cir. Aug. 1, 2006) (collateral attack of deportation order upon prosecution for illegal re-entry may include an attack on the original deportation order as well as the reinstated order upon which the illegal re-entry charges are based; "[r]einstatement orders do not exist independent and separate from their prior orders of removal but are instead explicitly premised on the prior order. See 8 U.S.C. 1231(a)(5)") http://caselaw.lp.findlaw.com/data2/circs/3rd/044513p.pdf

Fourth Circuit

JUDICIAL REVIEW - PETITION FOR REVIEW - DISCRETIONARY ISSUE BAR
Igwebuike v. Caterisano, ___ F.3d ___ , 2007 WL 1180300 (4th Cir. April 20, 2007) (while courts may be barred from reviewing denials of relief based upon the exercise of judicial discretion, "There is a "distinction between eligibility for discretionary relief . . . and the favorable exercise of discretion." St. Cyr, 533 U.S. at 307 (2001). A court may review the legal standards applied in a determination of eligibility, but it may not remand a decision to grant or withhold discretionary relief. See DaCosta v. Gonzales, 449 F.3d 45, 49 (1st Cir. 2006) (holding that the court could review the BIA's determination that petitioner was ineligible for discretionary relief); Morales-Morales v. Ashcroft, 384 F.3d 418, 422 (7th Cir. 2004) (concluding that the IIRIRA does not "clearly indicate that the exclusion from judicial review is so extreme as to purport to authorize the Attorney General to disregard statutory criteria").

Fifth Circuit

RELIEF " ASYLUM " REINSTATEMENT
Ramirez Mejia v. Lynch, __ F.3d __ (5th Cir. Jul. 21, 2015) (noncitizens whose removal orders are reinstated following illegal re-entry into the United States may not apply for asylum, since asylum is a form of relief for purposes of the bar to relief under INA 1231(a)(5)), agreeing with Herrera"Molina v. Holder, 597 F.3d 128, 139 (2d Cir. 2010).

REMOVAL PROCEEDINGS " REINSTATEMENT OF REMOVAL " EVIDENCE OF LAWFUL ENTRY " BURDEN OF PROOF
Anderson v. Napolitano, 611 F.3d 275 (5th Cir. Jul. 9, 2010) (readmission after removal under a different (married) name, as evidenced by stamp in passport, did not suggest that noncitizen lawfully reentered the United States: The passport stamp, which simply indicates she was admitted through an immigration check point, is not evidence that the Attorney General consented to Anderson applying for readmission.).

REINSTATEMENT OF REMOVAL - RETROACTIVITY
Rosa v. Gonzales, 490 F.3d 403 (5th Cir. Jun. 25, 2007) (reinstatement of removal order under 8 U.S.C. 1231(a)(5) is not impermissibly retroactive as applied to respondent who illegally re-entered after deportation, married, and had an approved I-130 petition [but had not yet adjusted to LPR status] prior to IIRAIRA; rights had not vested where noncitizen was only in the process of adjustment of status).

JUDICIAL REVIEW - PETITION FOR REVIEW - DISCRETIONARY DECISION - DHS DECISION TO REVOKE A PREVIOUSLY APPROVED IMMIGRANT VISA HELD DISCRETIONARY
Ghanem v. Upchurch, 481 F.3d 222 (5th Cir. Mar 6, 2007) (DHS decision to revoke previously approved immigration visa of a Jordanian citizen who married a United States citizen held to be "discretionary" and so immune from petition for review jurisdiction, following Third and Seventh Circuits, rather than the Ninth).

Sixth Circuit

OVERVIEW " JURISDICTION
Casillas v. Holder, 656 F.3d 273 (6th Cir. Sept. 2, 2011) (court lacks jurisdiction to review enforcement of a removal order that was entered in 1996, but was not enforced until 2009).

REINSTATEMENT OF REMOVAL " JUDICIAL REVIEW
De la Paz v. Holder, 640 F.3d 650 (6th Cir. Nov. 8, 2010) (circuit court has jurisdiction to review reinstatement order within 30 days of issuance, under 8 U.S.C. 1252(b)).

REMOVAL PROCEEDINGS " REINSTATEMENT OF REMOVAL
Villegas De la Paz v. Holder, 614 F.3d 605 (6th Cir. Jul. 30, 2010) (petitioner not prejudiced by denial of opportunity to make statement contesting the reinstatement because she contested only that she was originally ordered excluded, which the government established through sufficient documentation).

REMOVAL PROCEEDINGS " REINSTATEMENT OF REMOVAL " JURISDICTION TO REVIEW
Villegas De la Paz v. Holder, 614 F.3d 605 (6th Cir. Jul. 30, 2010) (court has jurisdiction to review, under 8 U.S.C. 1252(a)(2)(D), constitutional questions or questions of law related to reinstatement of removal).

Seventh Circuit

RELIEF " ASYLUM " REINSTATEMENT
Garcia v. Sessions, __ F.3d __ (7th Cir. Oct. 11, 2017) (noncitizen subject to reinstatement of removal is barred by INA 241(a)(5) from applying for asylum).

JUDICIAL REVIEW - EXHAUSTION
Fonseca-Sanchez v. Gonzales, 484 F.3d 439 (7th Cir. Apr. 13, 2007) (petitioner failed to exhaust administrative remedies by not claiming a right to interim "U" visa relief prior to issuance of a final removal order).

Eighth Circuit

REMOVAL PROCEEDINGS - REINSTATEMENT OF REMOVAL -- RETROACTIVITY
Molina Jerez v. Holder, 625 F.3d 1058 (8th Cir. Aug. 25, 2010) (court did not err in applying reinstatement of removal provision retroactively).

RELIEF - EXPEDITED REMOVAL - RETROACTIVITY - RETROACTIVE APPLICATION OF EXPEDITED REMOVAL NOT A DUE PROCESS OR EQUAL PROTECTION VIOLATION
Gonzalez v. Chertoff, 454 F.3d 813 (8th Cir. Jul. 20, 2006) (retroactive application of expedited removal proceedings was not impermissibly retroactive and did not violate due process or equal protection rights).

Ninth Circuit

REMOVAL PROCEEDINGS " REINSTATEMENT OF REMOVAL
Ortega v. Holder, ___ F.3d ___, 2014 WL 1273767 (9th Cir. Mar. 31, 2014) (application of the reinstatement statute was not impermissibly retroactive, because petitioner had taken no action to vest any right he may have initially had to renew his application for adjustment of status).

REMOVAL PROCEEDINGS " REINSTATEMENT OF REMOVAL
Montoya v. Holder, 744 F.3d 614 (9th Cir. Mar. 7, 2014) (applying the IIRAIRA reinstatement statute, 8 U.S.C. 1231(a)(5) (the alien is not eligible and may not apply for any relief under this chapter), to petitioner was not impermissibly retroactive even though her brother had filed a Form I-130 petition for alien relative on her behalf before the Act's effective date, because she took no pre-enactment action sufficient to create a vested right to apply for adjustment of status).

REINSTATEMENT OF REMOVAL " RETROACTIVITY
Ixcot v. Holder, __ F.3d __ (9th Cir. Jun. 1, 2011) (reinstatement of removal provisions, under INA 241(a)(5), 8 U.S.C. 1231(a)(5), are impermissibly retroactive when applied to noncitizens who applied for discretionary relief prior to IIRAIRA), agreeing with Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003), Sarmiento Cisneros v. Attorney General, 381 F.3d 1277 (11th Cir. 2004), Faiz"Mohammad v. Ashcroft, 395 F.3d 799 (7th Cir. 2005), and Valdez"Sanchez v. Gonzales, 485 F.3d 1084 (10th Cir. 2007).

REINSTATEMENT OF REMOVAL
Duran-Gonzales v. Mukasey, 508 F.3d 1227 (9th Cir. Nov. 30, 2007) (barring adjustment of status under LIFE Act if noncitizen has been removed and illegally re-entered; rule applies even if I-212 petition for permission to re-enter following removal was filed prior to DHS filing to reinstate prior removal order), reversing Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), deferring to BIA decision Matter of Torres-Garcia, 23 I. N. Dec. 866 (BIA 2006) (holding plaintiffs ineligible as a matter of law to adjust their status because they are ineligible to receive I-212 waivers, because they have illegally re-entred the United States after removal, and have not yet been outside the United States for 10 years, as is required before seeking a waiver).

REINSTATEMENT OF REMOVAL
Martinez-Merino v. Keisler, 504 F.3d 1068 (9th Cir. Oct. 10, 2007) (noncitizen does not have due process/suspension clause right to challenge underlying deportation order when facing reinstatement of removal), following Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2000).

ILLEGAL REENTRY - ELEMENTS - PRIOR DEPORTATION
United States v. Diaz-Luevano, ___ F.3d ___, 2007 WL 2044256 (9th Cir. Jul. 18, 2007) (prior physical removal remains one of the bases for sentence enhancement under 8 U.S.C. 1326 and United States Sentencing Guideline 2L1.2; Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc), does not overrule United States v. Luna-Madellaga, 315 F.3d 1224 (9th Cir. 2003)).

RELIEF - REINSTATEMENT OF REMOVAL STATUTE NOT UNCONSTITUTIONAL IN DENYING HEARING BEFORE IJ
Morales-Izquierdo v. Gonzales, 477 F.3d 691 (9th Cir. 2007) (en banc) ("We conclude that a previously removed alien who reenters the country illegally is not entitled to a hearing before an immigration judge to determine whether to reinstate a prior removal order. The reinstatement statute and its implementing regulation comport with due process, and 8 C.F.R. 241.8 is a valid interpretation of the INA.").

Tenth Circuit

OVERVIEW " REMOVAL PROCEEDINGS " REINSTATEMENT
Luna-Garcia v. Holder, __ F.3d __ (10th Cir. Feb. 10, 2015) (if a noncitizen seeks reasonable fear proceedings following reinstatement of a prior order of removal, the reinstated order is not final until the reasonable fear proceedings are complete).

REMOVAL - REINSTATEMENT OF REMOVAL
Lorenzo v. Mukasey, 508 F.3d 1278 (10th Cir. Nov. 20, 2007) (respondents admissions regarding illegal re-entry held sufficient to meet DHS burden for reinstatement; not unreasonable to read 8 C.F.R. 241.8 as allowing immigration officers (not only immigration judges) to reinstate a removal order).

RELIEF - REINSTATEMENT OF REMOVAL ORDER - REINSTATEMENT STATUTE DOES NOT APPLY RETROACTIVELY TO NONCITIZEN WHO WAS EXCLUDED, REENTERED, MARRIED U.S. CITIZEN, AND GRANTED ADJUSTMENT OF STATUS BEFORE EFFECTIVE DATE OF IIRAIRA
Valdez-Sanchez v. Gonzales, ___ F.3d ___ (10th Cir. April 23, 2007) (after noncitizen had been ordered excluded, reentered, married a U.S. citizen, and was granted an adjustment of status prior to the effective date of IIRAIRA, DHS may not retroactively apply INA 241(a)(5) to reinstate a previous removal order).

REINSTATEMENT OF REMOVAL ORDER - RETROACTIVITY
Valdez-Sanchez v. Gonzales, 485 F.3d 1084 (10th Cir. April 23, 2007) (where Petitioner was ordered excluded, reentered, married a United States citizen, and sought and was granted an adjustment of status prior to the effective date of IIRIRA, DHS may not retroactively apply INA 241(a)(5) to reinstate a previous removal order).

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION REQUIREMENT - SPECIFIC ISSUE MUST BE ADDRESSED BEFORE THE BIA BEFORE IT MAY BE RAISED IN PETITION FOR REVIEW
De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) ("where a specific issue was not addressed in administrative proceedings in the manner it is now addressed before us, general statements in the notice of appeal to the BIA are insufficient to constitute exhaustion of administrative remedies."), citing Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004).

JUDICIAL REVIEW - PETITION FOR REVIEW - JURISDICTION LIMITS - DUE PROCESS AND EQUAL PROTECTION CLAIMS RELATING TO STOP-TIME RULE FOR CANCELLATION OF REMOVAL FOR LPRS CONSTITUTE CONSTITUTIONAL CLAIMS OVER WHICH COURT HAS JURISDICTION
De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (due process and equal protection claims relating to stop-time rule for cancellation of removal constitute constitutional claims over which court has petition for review jurisdiction).

JUDICIAL REVIEW - PETITION FOR REVIEW - JURISDICTION LIMITS - QUESTION REGARDING INTERPRETATION OF TREATY CONSTITUTE QUESTIONS OF LAW REVIEWABLE ON PETITION FOR REVIEW
De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (claims involving interpretation of treaties constitute questions of law over which court has petition for review jurisdiction: "Congress's treaty power is given similar weight to its legislative power."); O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 988, 1009 n.5 (10th Cir. 2004) ("an Act of Congress ... is on a full parity with a treaty."); cf. Valentine v. United States, 299 U.S. 5, 10 (1936) ("The Constitution declares a treaty to be the law of the land. It is consequently ... to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision." (internal quotes omitted)); Quang Ly Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006) (reviewing legal issues involving the U .N. Convention Against Torture (CAT) under the 8 U.S.C. 1252(a)(2)(D) grant); Akram Qassim Hamid v. Gonzales, 417 F.3d 642, 647 (7th Cir. 2005) (courts of appeals may review constitutional and legal questions "relevant to a petitioner's claim for relief under CAT"); Kamara v. Att'y Gen. of the United States, 420 F.3d 202, 211 (3d Cir. 2005) (finding jurisdiction over "pure questions of law" and the "issues of application of law to fact" in a CAT claim).

RELIEF " REINSTATEMENT OF REMOVAL
Cordova-Soto v. Holder, 659 F.3d 1029 (10th Cir. Oct. 17, 2011) (DHS may reinstate prior order of removal where noncitizen did not obtain Attorney General's permission to re-renter, even if re-entry by driving through a border point and being waved through was procedurally regular; court can only review prior removal order (underlying the reinstatement order) where petition for review was filed within 30 days of the original order). NOTE: This is a badly reasoned decision because (1) if the petition for review was successful, there would be no reinstatement order and (2) if the petition for review was unsuccessful, the court would likely deny a second, collateral challenge on the merits. Thanks to Trina Realmuto.

Eleventh Circuit

REMOVAL PROCEEDINGS - REINSTATEMENT
Avila v. U.S. Attorney General, 560 F.3d 1281 (11th Cir. Mar. 5, 2009) (order reinstating prior removal order is subject to judicial review; court lacks jurisdiction to review underlying removal order).

REINSTATEMENT - VENUE
Avila v. U.S. Attorney General, 560 F.3d 1281 (11th Cir. Mar. 5, 2009) (petition for review was properly filed in the Eleventh Circuit because DHS issued reinstatement order there, even though original proceedings occurred in another circuit).

RELIEF - REINSTATEMENT
Sandoval v. US Attorney Gen., 440 F.3d 1276 (11th Feb. 27, 2006) (expedited removal regulation, 8 C.F.R. 241.8, is not ultra vires to statute, and does not violate due process; statute is not impermissibly retroactive when applied to a noncitizen who illegally re-entered the United States after IIRAIRA; reinstatement statute is not in conflict with INA 245(i) provisions). http://caselaw.lp.findlaw.com/data2/circs/11th/0412223p.pdf

Other

RELIEF - REINSTATEMENT OF REMOVAL
Reinstatement of Removal Practice Advisory by AILF (Updated Jul. 11, 2006) (discussing reinstatement of removal, challenges to and federal court review of reinstatement orders, and the Supreme Court's recent decision in Fernandez-Vargas v. Gonzales). http://www.ailf.org/lac/reinstatment.pdf