Criminal Defense of Immigrants

IIRAIRA established a means for reinstatement of a prior removal order against a noncitizen who has illegally re-entered the United States after having been removed.[513]  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.[514]

A circuit split emerged 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,[515] and the First, Fourth, Seventh, Eighth, and Tenth Circuits disagreeing, at least in part.[516]  On June 22, 2006, the United States Supreme Court held that the reinstatement provisions were not impermissibly retroactive as applied to a noncitizen who re-entered the United States before April 1, 1997 and took no steps to seek lawful status before that date.[517]  This case overruled at least two prior cases,[518] and put the holding of another at risk.[519]  Arguably, however, the remaining cases finding the reinstatement provisions impermissibly retroactive in other situations still stand.

Judicial review of collateral attack on a reinstatement order is limited.[520]

However, at least one court has found that collateral attack of an order of reinstatement upon prosecution for illegal re-entry includes an attack on the original order of deportation.[521]

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

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

[515] Dinnall v. Gonzales, 421 F.3d 247 (3d Cir. Sept. 1, 2005) (reinstatement of prior order of deportation under INA § 241(a)(5), 8 U.S.C. § 1231(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 De Sandoval v. US Att’y 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); 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).

[516] Gonzalez v. Chertoff, 454 F.3d 813 (8th Cir. Jul. 20, 2006); 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) (reinstatement process 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).

[517] Fernandez-Vargas v. Gonzales, 548 U.S. 2422 (June 22, 2006).

[518] Bejjani v. INS, 271 F.3d 670 (6th Cir. 2001), Castro-Cortez et al. v. INS, 239 F.3d 1037 (9th Cir. 2001).

[519] Dinnal v. Gonzales, 421 F.3d 247 (3d Cir. 2005).

[520] 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”).

[521] United States v. Charleswell, 456 F.3d 347 (3d Cir. Aug. 1, 2006) (“[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)”).