REINSTATEMENT OF REMOVAL

At any time after Unlawful Entry

241(a)(5) of the Immigration and Nationality Act of 1952 ("Act"), Pub. L. No. 82-414, 66 Stat. 163,
8 U.S.C. 1231(a)(5).

Copyright 1999 VIKRAM BADRINATH, P.C. All rights reserved.


Introduction

With passage of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, Congress attempted to "crack down" on aliens who unlawfully reenter the United States after being deported, excluded, or removed. In order to prevent recidivism, and to punish those who return illegally after being deported, Congress enacted a new, extremely harsh provision of law that divests an Immigration Judge or the Federal Courts to review certain removal orders.

Application of Law

Under 241(a)(5) of the IIRIRA, if the U.S. INS determines that an alien has reentered the United States illegally after having been removed, deported, or excluded at any time or having departed voluntarily, under an order of removal, the prio order of removal is reinstated from its original date and is not subject to being reopened or reviewed, and the alien shall be removed under the prior order at any time after the reentry. In addition, an alien is not eligible for any form of relief from a Reinstatement proceeding. This means, that if an alien has been ordered excluded, deported, or removed, at any time, even after expiration of the prior order (e.g., five (5) years in deportation cases, ten (10) years in removal cases, twenty (20) years in cases involving "aggravated felons"), and thereafter unlawful reenters the United States, the U.S. INS will apprehend the alien and process him for a Reinstatement of the prior order.

A reinstated order generally requires only a determination that: (1) the identity of the alien has having been previously removed; (2) confirmation that the alien was in fact removed (deported or excluded); (3) that the alien unlawfully reentered the United States.

Presumably, waivers such as 245(i) and a granted Application for Permission to Return after Removal/Deportation (Form I-212) would have no effect upon a reinstatement order if an alien illegally reenters the United States at anytime after a prior removal.

While, currently, this new law remains unchallenged and untested, future litigation may clarify and narrow its scope and reach. In addition, a class-action lawsuit against the U.S. INS has been filed in California. Please click here for more information.

For more information about Reinstatement of Removal Orders, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed by an attorney.