Reinstatement of Removal: An Introduction
Updated July 8, 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. Finally, the officer
nationals (aliens) who do not meet requirements governing
must confirm that the alien unlawfully reentered the United
their entry or continued presence in the United States. Most
States. If the officer concludes that the alien is subject to
removable aliens found in the interior of the country are
reinstatement, INA § 241(a)(5) requires the alien’s removal
subject to “formal” removal proceedings under INA § 240.
under the reinstated order, and the alien has no right to an
Aliens in these proceedings have certain procedural
administrative hearing before an IJ though, as discussed
guarantees including the right to appear at a hearing before
below, federal court review may be available.
an immigration judge (IJ), to pursue relief from removal,
and to appeal an adverse decision. However, the INA sets
Most courts have interpreted INA § 241(a)(5) as barring the
forth a streamlined “reinstatement of removal” process for
reopening of the alien’s prior removal proceedings to
certain aliens who unlawfully reenter the United States after
challenge the reinstated order and seek relief from removal.
being 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). The U.S. Court of Appeals for the Ninth Circuit,
United States. This In Focus provides a brief introduction to
however, 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. There are exceptions to this rule.
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). That said, some lower courts have ruled that INA
and CAT protection only bar removal to the country where
§ 241(a)(5) does not apply to aliens who reentered and tried
the alien fears persecution or torture (but not necessarily to
to legalize their immigration status before that date. See
an alternate country), and afford no pathway to lawful
e.g., Ixcot v. 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—only whether they
codified at 8 C.F.R. §§ 208.31 and 241.8 set forth certain
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
https://crsreports.congress.gov
Reinstatement of Removal: An Introduction
of removal and CAT protection only (“withholding-only
alien’s removal in the reasonably foreseeable future.
proceedings”). The alien may appeal the IJ’s decision on
Zadvydas v. Davis, 533 U.S. 678 (2001).
those applications to the Board of Immigration Appeals
(BIA). Most courts have held that the alien may not seek
The Supreme Court has held that INA § 241(a) governs the
asylum or other forms of relief in these proceedings. See
detention of aliens subject to reinstatement who are placed
e.g., R-S-C v. Sessions, 869 F.3d 1176 (10th Cir. 2017).
in withholding-only proceedings because they have already
been ordered removed and their removal orders are
An alien found not to have a reasonable fear may request an
administratively final. Johnson v. Chavez, -- S. Ct. --, 2021
IJ’s review of that determination. If the IJ concurs with that
WL 2653264 (June 29, 2021). The Court ruled that INA
finding, the alien is subject to reinstatement, and there is no
§ 236(a)’s discretionary detention provisions do not apply
administrative appeal. But if the IJ finds the alien has a
because the withholding-only proceedings do not determine
reasonable fear, the alien may pursue withholding and CAT
“whether the alien is to be removed,” but whether the
protection, and appeal any adverse decision to the BIA.
alien’s removal to a particular country (but not necessarily a
Applicants for Certain Discretionary Benefits
third country) should be withheld.
Under the Haitian Refugee Immigrant Fairness Act of 1998
Therefore, aliens placed in withholding-only proceedings
(HRIFA) and the Nicaraguan Adjustment and Central
generally have no right to bond hearings pending the
American Relief Act (NACARA), a small (and decreasing)
outcome of those proceedings. Some courts, however, have
number of long-term residents from certain countries may
held that aliens detained post-order of removal have a right
adjust to LPR status. DHS regulations, codified at 8 C.F.R.
to bond hearings after prolonged periods of detention, even
§ 241.8, instruct that, if an alien subject to reinstatement has
if their continued detention is otherwise permitted by the
applied for adjustment of status under these laws, the prior
removal order may not be reinstated “unless and until a
statute (e.g., because there is a significant likelihood of the
alien’s removal in the reasonably foreseeable future).
final decision to deny the application for adjustment has
been made.” If the alien’s
Guerrero-Sanchez v. Warden York Co. Prison, 905 F.3d
application is granted, the
208 (3d Cir. 2018); Diouf v. Napolitano, 634 F.3d 1081 (9th
reinstated removal order “shall be rendered moot.”
Cir. 2011).
Additionally, alien victims of human trafficking or certain
Judicial Review
criminal activity who qualify for “T” or “U” nonimmigrant
Under INA § 242(b), an alien may petition for review
status, and aliens eligible to adjust to LPR status under the
within 30 days of a reinstatement order in the federal
Violence Against Women Act, are arguably exempt from
appellate court for the judicial circuit where the
reinstatement of removal. Such aliens can seek waivers of
reinstatement was issued. The court’s review is typically
most grounds of inadmissibility, including those that apply
limited to the legality of the reinstatement order (e.g.,
to unlawful reentrants who have been ordered removed.
whether the alien was previously ordered removed). An
Governing regulations instruct that, if a T or U status
alien may also challenge a negative reasonable fear finding
applicant has an order of removal issued by DHS (e.g., a
or (if placed in withholding-only proceedings) the denial of
reinstated order of removal), the order is “deemed canceled
by operation of law” upon approval
withholding of removal and CAT protection. Reviewing
of status. 8 C.F.R. §§
courts have held that the reinstatement order is not final for
214.11, 214.14.
purposes of the 30-day petition for review deadline until the
Detention of Aliens Subject to
reasonable fear or withholding-only proceedings are
Reinstatement of Removal
completed at the agency level. See e.g., Luna-Garcia v.
Holder, 777 F.3d 1182 (10th Cir. 2015).
Under INA § 236(a), detention by immigration authorities
of an alien “pending a decision on whether the alien is to be
removed”
INA § 241(a)(5) generally bars judicial review of the merits
is generally discretionary, unless the alien is
of the underlying removal order being reinstated. An
subject to mandatory detention (e.g., aliens convicted of
exception exists under INA § 242(a)(2)(D) to review
specified crimes). If detained, the alien may request an IJ’s
challenges to reinstated removal orders that raise questions
review of DHS’s custody determination at a bond hearing
of law or constitutional claims. See e.g., Villegas de la Paz
and potentially secure release from custody.
v. Holder, 640 F.3d 650 (6th Cir. 2010). Most courts
require petitions challenging reinstated removal orders to be
INA § 241(a), by contrast, governs the detention of an alien
filed within 30 days of the underlying removal order, not
who is subject to a final order of removal, and requires the
alien’s detention during
the order reinstating that order. See e.g., Luna-Garcia de
a 90-day “removal period” after the
Garcia v. Barr, 921 F.3d 559 (5th Cir. 2019); but see Vega-
order becomes final. The statute permits the continued
Anguiano v. Barr, 982 F.3d 502 (9th Cir. 2020) (holding
detention of some aliens whose removal cannot be
that challenge to removal order may be raised in a timely
effectuated in the 90-day period (e.g., those who are
“
challenge to reinstatement order). Courts have also held that
unlikely to comply with the order of removal” if released),
the jurisdictional framework preserved by § 242(a)(2)(D)
subject to periodic custody review. Unlike § 236(a), the
does not apply to challenges to reinstated expedited removal
statute provides for no bond hearings. But given the
“serious constitutional concerns”
orders. See, e.g., Garcia de Rincon v. DHS, 539 F.3d 1133
raised by indefinite
(9th Cir. 2008).
detention, the Supreme Court has construed § 241(a) as
having an implicit, temporal limitation of six months post-
Hillel R. Smith, Legislative Attorney
order of removal if there is no significant likelihood of the
IF11736
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Reinstatement of Removal: An Introduction
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