PRACTICE ADVISORY ON
REINSTATEMENT OF A PRIOR
REMOVAL/DEPORTATION ORDER
By Mary Kenney, AILF and
Trina Realmuto, Van Der Hout & Brigagliano
REVISED - November 1, 2001
This practice advisory will discuss whether
reinstatement of removal under INA §241(a)(5), 8 U.S.C.
§1231(a)(5), can be applied retroactively to a person 1)
whose prior order of deportation pre-dated IIRIRA or 2)
who illegally reentered the country prior to the
effective date of IIRIRA. The 4th Circuit's
recent decision, Velasquez-Gabriel v. INS, __
F.3d. __ , WL 2001 951583(4th Cir. 2001), is limited to
its very specific facts and should not govern whether the
statute is impermissibly retroactive if applied in other
situations.
In the §212(c) context, these arguments may assist
individuals who would be eligible to request a reopening
of the prior deportation order but for the fact that INS
reinstates the prior order under §241(a)(5).
The information in this advisory is accurate and
authoritative, but does not substitute for individual
legal advice supplied by a lawyer familiar with a
client's case.
What is reinstatement of removal?
INA §241(a)(5), enacted by §305(a) of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 ("IIRIRA"), Pub. L. No. 104-208,
110 Stat. 3009-575 (1996), authorizes INS to
automatically reinstate a prior removal order in cases
where an individual left the U.S. following a final order
of removal and subsequently reentered the country
illegally. INA §241(a)(5) reads as follows:
(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.
The INS regulations implementing this section are
extremely broad. First, INS interprets "a prior
order of removal" as encompassing prior orders
of deportation and exclusion. 8 C.F.R. §241.8(a). Some
courts have upheld this interpretation. See, e.g.,
Velasquez-Gabriel, supra. Additionally, except in the
9th Circuit, INS takes the position that §241(a)(5) can
be applied retroactively to reentries before April 1,
1997, the effective date of IIRIRA § 305(a). Finally,
INS has implemented reinstatement as a summary
proceeding: under the regulations, an individual is
subject to an order of reinstatement and removal by an
agent without any opportunity for a hearing before an IJ
or review by the BIA. 8 C.F.R. §241.8(a).
1
Does an individual have an opportunity to respond in
reinstatement proceedings?
After a Notice of Intent to Reinstate a prior order is
served, an individual must note on the Notice Form (INS
Form I-871) whether he or she wishes to contest the
determination by checking a box on the form. The
individual is then allowed to make a written or oral
statement. 8 C.F.R. §241.8(b). The INS agent is
authorized to only consider the following issues,
however: whether the individual is the subject of a prior
removal/deportation order; whether the individual is in
fact the person who was previously removed; and whether
the alien unlawfully reentered the U.S. 8 C.F.R.
§241.8(a).
Despite the limited review allowed by the regulations,
attorneys should make all possible legal and factual
arguments in opposition to the reinstatement proceedings.
Attorneys should request that the INS present evidence of
the client's prior order, departure and subsequent
reentry. Attorneys should also attempt to present all
evidence that can be secured in support of the client's
position. This is particularly important if the client
wishes to file a petition for review of the reinstatement
order, since the court's review will be limited to the
record. INA §242(b)(4), 8 C.F.R. §1252(b)(4).
Can a reinstatement order be appealed?
Yes. The only two circuit courts to address the issue
have both found that federal court review of an order of
reinstatement is available by means of a petition for
review. Castro-Cortez v. INS, 239 F.3d 1037 (9th
Cir. 2001); Velasquez-Gabriel, supra. Thus, to
appeal a reinstatement order attorneys must file a
petition for review within 30 days of the date the
reinstatement order was issued. The petition for review
must be filed in the circuit court having jurisdiction
over the place the reinstatement order was issued.
Should another circuit decide that reinstatement orders
should be appealed via a habeas corpus petition, and
dismiss the petition for review, you will still be able
to file a habeas petition because there is no deadline
for filing these.
The 30-day deadline for filing a petition for
review is jurisdictional, which means that if you miss
the deadline, you cannot file it later.
INA§242(b)(1), 8 U.S.C. §1252(b)(1). When INS initiates
a reinstatement, it will issue a "Notice of
Intent/Order to Reinstate Prior Order," form
I-871. The bottom box on this document, when signed by
the INS agent, is the order. Thus, it is the date of this
signature (or service of the order if not served
within 30 days of the signature) that triggers the
appeal deadline for filing a petition for review.
If a petition for habeas corpus rather than a petition
for review has already been filed, and the district court
determines that a petition for review is required, the
court may be willing to transfer the case to the court of
appeals pursuant to 28 U.S.C. §1631. Your argument for
transfer will be particularly strong if you filed the
habeas petition within thirty days of the date of the
reinstatement order.
Does the term "removal order"
in §241(a)(5) include all prior orders of deportation
and exclusion?
IIRIRA §309(d)(2) states that any reference in law to an
order of removal shall be deemed to include an order of
exclusion and/or deportation. The INS argues that IIRIRA
§309(d)(2) requires that the reference to an order of
removal in §241(a)(5) be deemed to include an order of
deportation or exclusion in all situations. However, it
is a basic rule of statutory construction that all terms
in a statute must be given effect. Notwithstanding IIRIRA
§309(d)(2), Congress chose in other sections of IIRIRA
to specifically designate both removal orders and
deportation and/or exclusion orders, thus differentiating
between the three. See, e.g., 8 U.S.C. § 1326(a)(1)
(1998) as amended by IIRIRA §308(d)(4)(J) (specifying an
"order of exclusion, deportation, or removal").
While IIRIRA §309(d)(2) must have some meaning, if it is
applied to all situations, Congress' specification of
both removal orders and deportation/exclusion orders in
other sections of IIRIRA would be superfluous. There are
two arguments that harmonize all of these IIRIRA
provisions, so that none are rendered superfluous:
1. §241(a)(5) should be read as including only orders of
deportation or exclusion that are issued in those
transitional rule cases in which the Attorney General,
under IIRIRA §309(c)(2), elected to apply the new
provisions of IIRIRA, including §241(a)(5), to pending
deportation and exclusion proceedings. Where §309(c)(2)
is invoked, resulting orders of deportation and exclusion
would be deemed to be orders of removal for purposes of,
inter alia, §1231(a)(5), thus giving effect to IIRIRA
§309(d)(2); or
2. §241(a)(5) should be read as applying only to
deportation and exclusion orders issued after April 1,
1997 in transitional rule cases. Where an individual
subject to a post-April 1, 1997 order of deportation or
exclusion in a transitional rule case reenters illegally
after April 1, 1997, § 309(d)(2) could be invoked to
make §241(a)(5) applicable to that deportation/exclusion
order. Thus, IIRIRA §309(d)(2) would be given effect
without impermissibly applying §1231(a)(5) retroactively
or violating due process.
The 4th Circuit has specifically rejected a similar
argument in Velasquez-Gabriel, supra. The 9th Circuit
found it unnecessary to resolve this issue in
Castro-Cortez. However, in a subsequent decision, the 9th
Circuit held - without discussion - that §241(a)(5)
could be applied to pre-IIRIRA orders. Gallo-Alvarez v.
Ashcroft, __ F.3d __, 2001 US App. Lexis 20662 (9th Cir.,
Sept 21, 2001). Arguably, this decision is not binding on
future panels within the 9th Circuit because of the
absence of any discussion. See, e.g., Magnin v.
Commissioner, 184 F.3d 1074, 1077 (9th Cir. 1999)
("When a case assumes a point without discussion,
the case does not bind future panels"). Moreover, a
petition for rehearing of this decision has been filed on
behalf of AILA/AILF and other immigration organizations
in their role as amici. The issue of the scope of the
term "order of removal" as used in §241(a)(5)
has not been decided in other circuits.
Does the application of §241(a)(5) to individuals who
either were ordered deported/excluded before April 1,
1997 or who illegally reentered the country before that
date raise retroactivity concerns?
There is a two-step process to determine whether a new
statute should be applied retroactively to conduct that
takes place before its enactment. Landgraf v. USI Film
Products, 511 U.S. 244 (1994). The first question is
whether Congress expressed a clear intent as to the
statute's temporal reach. If it did, then this intent
governs. Where there is no clear Congressional intent as
to the statute's temporal reach, a court must determine
whether the statute, if applied to earlier conduct, would
have a retroactive effect.
There is a strong argument, adopted by the 9th Circuit,
that Congress intended §241(a)(5) to only apply
prospectively. Castro-Cortez v. INS, 239 F.3d 1037
(9th Cir. 2001). Even where a court is unwilling to find
this Congressional intent, there is a second, strong
argument that application of §241(a)(5) to either
pre-IIRIRA deportation/exclusion orders or to reentries
that occurred prior to the statute's effective date is
impermissibly retroactive.
1. Congress intended the statute to
only apply prospectively.
The 9th Circuit has held that INA §241(a)(5) is not
applicable to anyone who reentered the U.S. prior to
April 1, 1997. Castro-Cortez, supra. Applying
ordinary rules of statutory construction, the Court found
three significant indications that Congress intended that
the statute only apply prospectively. First, the Court
found significant the fact that Congress removed the
retroactive language contained in INA §242(f)
(§241(a)(5)'s predecessor) when it enacted §241(a)(5).
The prior statute specified that the reinstatement
procedures applied to reentries that occurred either
before or after the statute's effective date. Second, the
Court noted that in other sections of IIRIRA, Congress
specified that those sections were to apply to
pre-enactment conduct. By negative implication, see
Lindh v. Murphy, 521 U.S. 320 (1997), the absence of
such specification in §241(a)(5) indicates that Congress
did not intend it to be applied to past conduct. Finally,
the Court found instructive Congress' silence as to
temporal reach. Since Congress is deemed to enact
legislation with the Landgraf rule in mind,
Congress was on notice that if it wanted a provision to
be retroactively applied, it had to explicitly state that
intent.
Thus, in the 9th Circuit, if an individual is notified of
INS' intent to reinstate a prior order based upon a
reentry that occurred before April 1, 1997, you should
demand termination of the reinstatement proceeding under Castro-Cortez.
If INS proceeds to issue an order, and you believe that Castro-Cortez
governs, you should immediately file a petition for
review and seek a stay of removal while the case is under
review. Additionally, INS has taken the position in at
least one case that Castro-Cortez' holding applies
to any case in which the prior order originated in the
9th Circuit. Thus, outside of the 9th Circuit, an
individual may still benefit from Castro-Cortez if
the prior order was issued in the 9th Circuit and if the
individual reentered before April 1, 1997.
In Velasquez-Gabriel,
the 4th Circuit rejected the interpretation of
§241(a)(5) as being prospective only, and thus this
argument may not be possible in that circuit.2
In all other circuits, Castro-Cortez should be
cited when arguing that Congress did not intend INA
§241(a)(5) to apply to cases in which the illegal
reentry occurred before April 1, 1997.
Moreover, under the reasoning of Castro-Cortez,
the argument exists that a prospective reading of the
statute precludes its application in any case in which
the prior order pre-dated April 1, 1997, regardless of
the date of the reentry. In Castro-Cortez, all of the
petitioners reentered the U.S. prior to April 1, 1997,
and thus the Court was not called upon to determine if a
prospective reading of §241(a)(5) precluded the
statute's application to a case in which the prior order
pre-dated IIRIRA and the reentry occurred after April 1,
1997.
2. Application of §241(a)(5) to orders of deportation
and/or reentries that
occurred before April 1, 1997, would be impermissibly
retroactive.
Even if a court is unwilling to find that Congress
intended that §241(a)(5) be applied prospectively,
reinstatement of removal in cases in which the prior
order and/or the reentry occurred before April 1, 1997
may still be impermissible under the second step of Landgraf.
The second step of the retroactivity analysis requires a
determination as to whether §241(a)(5), if applied to
prior orders and/or reentries occurring before April 1,
1997, would have a retroactive effect. There are strong
arguments that it would:
a. The Supreme Court has made clear that a statute has a
retroactive effect if
"it attaches new legal consequences to
events completed before its enactment," Landgraf,
supra, or if it "takes away or impairs vested
rights acquired under existing laws, or creates a new
obligation, imposes a new duty, or attaches a new
disability, in respect to transactions or considerations
already past." INS v. St. Cyr, 121 S.Ct.
2271, 2290-91 (June 25, 2001), quoting Landgraf.
St Cyr found that altering or eliminating the opportunity
for relief - even discretionary relief such as §212(c) -
constituted a "new disability." St. Cyr,
121 S.Ct. at 2290.
INA §241(a)(5), if applied to prior orders and/or
unlawful reentries that occurred before its effective
date, would attach new legal consequences to those
actions. Most significantly, it eliminates both the right
to a hearing to contest deportability and all eligibility
for relief from removal. In the reinstatement provision
that existed prior to §241(a)(5), an individual was
entitled to a hearing and also remained eligible to apply
for relief. See former INA§242(f)(1995); 8 C.F.R.
§242.23 (1995). Removal of this eligibility for relief
in §241(a)(5) would thus constitute a new disability
under St. Cyr. Additionally, Supreme Court precedent
makes clear that an individual should have notice of the
changed consequences of a new law prior to being subject
to them. Since the law was not yet in effect at the time
the prior order was issued, the individual had no notice
before leaving the United States of the consequences of
an illegal reentry. Cf., Martin v. Hadix, 527 U.S.
343 (1999) (finding a new statute setting attorney
fees was notice to attorneys that any fees earned
thereafter would be subject to the new fee rate).
b. In St. Cyr, the Court found that
individuals in the petitioner's situation
reasonably would have relied upon the availability of
§212(c) relief at the time that they accepted a plea.
However, the Court's decision does not impose a
requirement that an individual must show he or she relied
upon prior law. To the contrary, Supreme Court precedent
makes clear that reasonable reliance on prior law is not
necessary to demonstrate a retroactive effect. See,
e.g., Velasquez-Gabriel, citing Hughes Aircraft
Co. v. United States, 520 U.S. 939 (1997) ("That
Velasquez-Gabriel did not detrimentally rely on prior law
may not, however, foreclose a claim that§241(a)(5)
nonetheless operates retroactively").
Reasonable reliance is only one of numerous factors that
can be used to determine the retroactive effect of a
statute. In fact, the Supreme Court has recognized that
reliance on existing law is unlikely when the relevant
prior conduct - such as an illegal reentry - is itself
unlawful. See Landgraf, supra ("concerns
of unfair surprise and upsetting expectations are
attenuated in the case of [unlawful conduct]").
The Court made clear that "even where the conduct
in question is … illegal, a degree of unfairness is
inherent whenever the law imposes additional burdens
based on conduct that occurred in the past."
Id.
Thus, the argument regarding the retroactive effect of
§241(a)(5) would differ from St. Cyr, since the plea
agreement that triggered the retroactivity analysis in
St. Cyr was not unlawful conduct. Instead, the argument
would be premised on other Supreme Court precedent
finding impermissible retroactive effect on prior
unlawful conduct where there are new legal consequences,
including new disabilities, which result from the
unlawful conduct. See Landgraf, supra (unlawful
sexual harassment); Rivers v. Roadway Express, Inc.,
511 U.S. 298 (1994) (unlawful racial discrimination);
Hughes Aircraft Co., v. United States ex rel.
Schumer, 520 U.S. 939 (1997) (false claim to the
government).
What is the impact of Velasquez-Gabriel on the
retroactivity argument, particularly in the 4th Circuit?
In Velasquez-Gabriel, the 4th Circuit held that
§241(a)(5) was not impermissibly retroactive where the
petitioner, who sought adjustment of status, delayed
filing his adjustment application until well after the
effective date of IIRIRA, even though he had the
opportunity to file before the statute went into effect.
The 4th Circuit ignored the effect of §241(a)(5) on the
petitioner's illegal reentry, which had occurred prior to
April 1997, and instead found that the statute could not
retroactively attach new legal consequences to an
application filed after the statute's effective
date.
In the 4th Circuit, attorneys can argue that Velasquez-Gabriel
should be limited to its unique facts: a situation in
which the petitioner had an available avenue for relief
prior to §241(a)(5) becoming law, of which he failed to
take advantage. This will not be the situation in most
cases. In the case of an individual eligible for §212(c)
relief but denied the opportunity to apply for it, there
were no further avenues for relief for the individual to
pursue. Thus, Velasquez-Gabriel may be
distinguished on this basis. Without the delay issue to
confuse the retroactivity analysis, the argument can
instead focus on the retroactive effect of §241(a)(5) on
the individual's prior order or reentry.
In other circuits, the Supreme Court cases discussed in
this memo can be used to demonstrate that the 4th Circuit
failed to apply the correct retroactivity analysis when
it failed to consider the effect of §241(a)(5) on the
petitioner's reentry.
1 The
statute, however, is silent about the right to a hearing,
and the regulations are arguably ultra vires as to the
statute and should be challenged as such. Moreover, due
process requires a hearing before a fundamental liberty
can be denied. See, e.g., Mathews v. Eldridge, 424 U.S.
319 (1976).
To return to previous section
2 Note,
however, that the 4th Circuit’s
decision did not contain any discussion of Congress’
removal of the retroactive language in former §242(f).
Thus the case is arguably distinguishable on that ground.
To return to previous section
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