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.[407]  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.[408]

 

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,[409] and the First, Fourth, Seventh, Eighth, and Tenth Circuits disagreeing, at least in part.[410]  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.[411]  This case overruled at least two prior cases,[412] and put the holding of another at risk.[413]  Arguably, however, the remaining cases finding the reinstatement provisions impermissibly retroactive in other situations still stand.[414]

 

Judicial review of collateral attack on a reinstatement order is limited.[415]

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.[416]

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

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

[409] 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).

[410] 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).

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

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

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

[414] See, e.g., 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).  But see, 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).

[415] 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”).  But see, 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).

[416] 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)”).

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)).

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).

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.).

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).

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).

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).

JUDICIAL REVIEW " PETITION FOR REVIEW " EXHAUSTION
Perez-Mejia v. Holder, ___ F.3d ___, 2011 WL 5865888 (9th Cir. Nov. 23, 2011), amending 641 F.3d 1143 (9th Cir. Apr. 21, 2011) (even though petitioner did not raise an argument in his brief before the BIA, the issue is considered exhausted where the BIA addressed the issue on the merits); see Vizcarra"Ayala v. Mukasey, 514 F.3d 870, 874 (9th Cir. 2008) ([O]ur precedent is quite clear that claims addressed on the merits by the BIA are exhausted.); Socop"Gonzalez v. INS, 272 F.3d 1176, 1186 (9th Cir. 2001) (en banc) (because the BIA addressed respondents argument on the merits, [t]he BIA therefore had"and took advantage of"the opportunity to consider the merits of respondents argument).

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).

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).

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).

Other

JUDICIAL REVIEW - FUGITIVE DISENTITLEMENT DOCTRINE
A new AILF Practice Advisory entitled "The Fugitive Disentitlement Doctrine: FOIA and Petitions for Review" is now available. This practice advisory examines how DHS invokes the fugitive disentitlement doctrine to deny FOIA requests and how courts apply the doctrine to dismiss petitions for review. The advisory provides arguments to challenge the doctrine in both contexts. Access this resource on the AILF website at http://www.ailf.org/lac/pa/lac_pa_fugdis.pdf.