January 22, 2021
Reinstatement of Removal: An Introduction
The Immigration and Nationality Act (INA) establishes
the alien was previously removed (or voluntarily departed)
removal processes for different categories of non-U.S.
from the United States under that order. And third, the
nationals (aliens) who do not meet requirements governing
officer must confirm that the alien unlawfully reentered the
their entry or continued presence in the United States. Most
United States. If the officer concludes that the alien is
removable aliens found in the interior of the country are
subject to reinstatement, INA § 241(a)(5) requires the
subject to “formal” removal proceedings under INA § 240.
alien’s removal under the reinstated order, and the alien has
Aliens in these proceedings have certain procedural
no right to an administrative hearing before an IJ though, as
guarantees including the right to appear at a hearing before
discussed below, federal court review may be available.
an immigration judge (IJ), to pursue relief from removal,
and to appeal an adverse decision. But the INA sets forth a
Most courts have interpreted INA § 241(a)(5) as barring the
streamlined “reinstatement of removal” process for certain
reopening of the alien’s prior removal proceedings to
aliens who unlawfully reenter the United States after being
challenge the reinstated order and seek relief from removal.
removed—a process that accounts for a considerable
See e.g., Rodriguez-Saragosa v. Sessions, 904 F.3d 349 (5th
number of the removals of aliens found in the interior of the
Cir. 2018). But the U.S. Court of Appeals for the Ninth
United States. This In Focus provides a brief introduction to
Circuit has held that an alien may file a motion to reopen,
the reinstatement of removal framework.
seeking to rescind a prior order of removal, if it had been
entered in absentia based on the alien’s failure to appear at
Statutory Framework and
a hearing and the alien had not received notice of that
Implementation
hearing. Miller v. Sessions, 889 F.3d 998 (9th Cir 2018).
An alien ordered removed from the United States is
generally barred from reentering the country for a specified
Exceptions to Reinstatement of Removal
period (5 or 10 years for different categories of first-time
Generally, an alien subject to reinstatement is removed
removals; 20 years for those removed two or more times;
from the United States without a hearing or any review of
and a permanent bar for those convicted of an aggravated
the reinstated removal order, and the alien may not pursue
felony). The current reinstatement of removal process,
any relief from removal. But there are certain exceptions.
created by the Illegal Immigration Reform and Immigrant
Reasonable Fear Determinations
Responsibility Act of 1996, is codified in INA § 241(a)(5),
An alien subject to reinstatement who expresses a fear of
and applies to those aliens who unlawfully reenter the
returning to the country of removal is entitled to
country after being removed from (or having departed
administrative review of that claim before removal. Under
voluntarily from) the United States under an order of
DHS regulations, 8 C.F.R. §§ 208.31 and 241.8, the
removal. For those aliens, the prior order “is reinstated from
examining officer shall refer the alien for an interview with
its original date and is not subject to being reopened or
reviewed.”
an asylum officer to determine whether the alien has a
The alien “is not eligible and may not apply for
any relief” from removal, and “shall be removed under the
“reasonable fear” of persecution or torture. A reasonable
prior order at any time after the reentry.”
fear screening evaluates whether an alien might qualify for
These rules apply
two forms of relief: withholding of removal and protection
regardless of whether the alien is apprehended at the border
under the Convention Against Torture (CAT). The
or in the interior of the United States, and irrespective of
“reasonable fear” standard is stricter than the “credible
how long the alien has lived in this country.
fear” standard used to determine whether certain aliens
arriving at ports of entry and recent, first-time unlawful
The Supreme Court has held that INA § 241(a)(5) may be
entrants placed in expedited removal proceedings might
applied even if an alien unlawfully reentered the United
qualify for asylum.
States before the statute’s effective date (April 1, 1997), if
the alien chose to remain unlawfully in the country after
Unlike asylum, which provides an alien with a permanent
that date. Fernandez-Vargas v. Gonzales, 548 U.S. 30
legal foothold in the United States, withholding of removal
(2006). But some lower courts have ruled that § 241(a)(5)
and CAT protection only bar removal to the country where
does not apply to aliens who reentered and tried to legalize
the alien fears persecution or torture (but not necessarily to
their immigration status before that date. See e.g., Ixcot v.
an alternate country), and afford no pathway to lawful
Holder, 646 F.3d 1202 (9th Cir. 2011).
permanent resident (LPR) status or citizenship. The
reasonable fear screening does not fully assess an alien’s
Department of Homeland Security (DHS) regulations
withholding of removal or CAT claims, but only whether
codified at 8 C.F.R. §§ 208.31 and 241.8 set forth certain
they are viable enough to warrant more thorough review.
procedures in reinstatement cases. First, the examining
immigration officer must determine that the alien has a
An alien who shows a reasonable fear of persecution or
prior order of removal. Second, the officer must verify that
torture is referred to an IJ for consideration of withholding
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Reinstatement of Removal: An Introduction
of removal and CAT protection only (“withholding-only
In DHS’s view, detention in reinstatement cases, including
proceedings”). The alien may appeal the IJ’s decision on
during withholding-only proceedings, is governed by §
those applications to the Board of Immigration Appeals
241(a) because the alien has already been ordered removed.
(BIA). Most courts have held that the alien may not seek
Thus, the agency argues, aliens in reinstatement are subject
asylum or other forms of relief in these proceedings. See
to the 90-day mandatory detention period (triggered upon
e.g., R-S-C v. Sessions, 869 F.3d 1176 (10th Cir. 2017).
reinstatement of the prior removal order) and potentially
may remain detained beyond that period. The Third and
An alien found not to have a reasonable fear may request an
Ninth Circuits have agreed with DHS’s interpretation, but
IJ’s review of that determination. If the IJ concurs with that
citing Zadvydas, have ruled that aliens detained post-order
finding, the alien is subject to reinstatement and there is no
of removal are entitled to bond hearings after prolonged
administrative appeal. But if the IJ finds the alien has a
periods of detention. Guerrero-Sanchez v. Warden York Co.
reasonable fear, the alien may pursue withholding and CAT
Prison, 905 F.3d 208 (3d Cir. 2018); Padilla-Ramirez v.
protection, and appeal any adverse decision to the BIA.
Bible, 882 F.3d 826 (9th Cir. 2018).
Applicants for Certain Discretionary Benefits
Conversely, the Second and Fourth Circuits hold that §
Under the Haitian Refugee Immigrant Fairness Act of 1998
236(a) governs the detention of aliens in reinstatement who
(HRIFA) and the Nicaraguan Adjustment and Central
are placed in withholding-only proceedings because, in the
American Relief Act (NACARA), a small (and decreasing)
courts’ view, they are technically still in proceedings to
number of long-term residents from certain countries may
determine whether they are “to be removed,” and their
adjust to LPR status. DHS regulations, codified at 8 C.F.R.
removal orders are not final. These Circuits have thus held
§ 241.8, instruct that, if an alien subject to reinstatement has
that aliens are entitled to bond hearings at any time in
applied for adjustment of status under these laws, the prior
removal order may not be reinstated “unless and until a
withholding-only proceedings. Guzman-Chavez v. Hott, 940
F.3d 867 (4th Cir. 2019); Guerra v. Shanahan, 831 F.3d 59
final decision to deny the application for adjustment has
been made.”
(2d Cir. 2016). The Supreme Court has granted the
If the alien’s application is granted, the
government’s petition to review the Fourth Circuit’s
reinstated removal order “shall be rendered moot.”
decision, enabling the Court to resolve the circuit conflict
over DHS’s detention authority in reinstatement cases.
Additionally, alien victims of human trafficking or certain
criminal activity who qualify for “T” or “U” nonimmigrant
Judicial Review
status, and aliens eligible to adjust to LPR status under the
Under INA § 242(b), an alien may petition for review
Violence Against Women Act, are arguably exempt from
within 30 days of a reinstatement order in the federal
reinstatement of removal. Such aliens can seek waivers of
appellate court for the judicial circuit where the
most grounds of inadmissibility, including those that apply
reinstatement was issued. The court’s review is typically
to unlawful reentrants who have been ordered removed.
limited to the legality of the reinstatement order (e.g.,
And 8 C.F.R. §§ 214.11 and 214.14 instruct that, if a T or U
whether the alien was previously ordered removed). An
status applicant has an order of removal issued by DHS
alien may also challenge a negative reasonable fear finding
(e.g., a reinstated order of removal), the order is “deemed
canceled by operation of law” upon approval
or (if placed in withholding-only proceedings) the denial of
of status.
withholding of removal and CAT protection. Reviewing
Detention of Aliens Subject to
courts have held that the reinstatement order is not final for
Reinstatement of Removal
purposes of the 30-day petition for review deadline until the
reasonable fear or withholding-only proceedings are
Under INA § 236(a), detention by immigration authorities
completed at the agency level. See e.g., Luna-Garcia v.
of an alien “pending a decision on whether the alien is to be
removed”
Holder, 777 F.3d 1182 (10th Cir. 2015).
is generally discretionary, unless the alien is
subject to mandatory detention (e.g., aliens convicted of
INA § 241(a)(5) generally bars judicial review of the merits
specified crimes). If detained, the alien may request an IJ’s
of the underlying removal order being reinstated. But INA §
review of DHS’s custody determination at a bond hearing
242(a)(2)(D) permits review of challenges to reinstated
and potentially secure release from custody.
removal orders that raise questions of law or constitutional
claims. See e.g., Villegas de la Paz v. Holder, 640 F.3d 650
INA § 241(a), by contrast, governs the detention of an alien
(6th Cir. 2010). Most courts require petitions challenging
who is subject to a final order of removal, and requires the
alien’s detention during
reinstated removal orders to be filed within 30 days of the
a 90-day “removal period” after the
underlying removal order, not the order reinstating that
order becomes final. The statute permits the continued
order. See e.g., Luna-Garcia de Garcia v. Barr, 921 F.3d
detention of some aliens whose removal cannot be
559 (5th Cir. 2019); but see Vega-Anguiano v. Barr, 982
effectuated in the 90-day period (e.g., those who are
“
F.3d 502 (9th Cir. 2020) (holding that challenge to removal
unlikely to comply with the order of removal” if released),
order may be raised in a timely challenge to reinstatement
subject to periodic custody review. Unlike § 236(a), the
order). Courts have also held that the jurisdictional
statute provides for no bond hearings. But given the
“serious constitutional concerns”
framework preserved by § 242(a)(2)(D) does not apply to
raised by indefinite
challenges to reinstated expedited removal orders. See, e.g.,
detention, the Supreme Court has construed § 241(a) as
Garcia de Rincon v. DHS, 539 F.3d 1133 (9th Cir. 2008).
having an implicit, temporal limitation of six months post-
order of removal if there is no significant likelihood of the
Hillel R. Smith, Legislative Attorney
alien’s removal in the reasonably foreseeable future.
Zadvydas v. Davis, 533 U.S. 678 (2001).
IF11736
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Reinstatement of Removal: An Introduction


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https://crsreports.congress.gov | IF11736 · VERSION 1 · NEW

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