By Attorneys Robert L. Reeves and Jeremiah Johnson
Last July Reeves & Associates discussed the impact of Fernandez-Vargas v. Gonzales, the Supreme Court’s decision extending reinstatement of removal to aliens who illegally reentered the United States prior to the passage of the Illegal Immigration and Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Last week, the Ninth Circuit Court of Appeals echoed the decision in a rehearing of Morales-Izquierdo v. Gonzales. At issue was not to whom the reinstatement provision applies, but rather who has the authority to reinstate a prior removal order: an immigration official or a judge? Morales argued that only an immigration judge could reinstate the prior removal order despite federal regulations to the contrary. The Government argued that the Attorney General could authorize an immigration official to reinstate a prior removal order. The Court agreed with the Government, and held that the Attorney General did not exceed his authority when he changed the regulations in 1997 to exclude immigration judges from the reinstatement process.
Specifically, the Ninth Circuit held 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 Court further went on to hold that regardless of the process afforded at the original removal hearing, reinstatement does not violate due process. This holding causes particular concern because it reverses the Court’s previous position that the Government cannot reinstate a prior removal order that does not originally comport with due process. That is to say, even if an alien’s prior removal order violated due process, if the alien leaves the United States and illegally reenters, he can not challenge the reinstatement of that prior order.
Given the severe consequences of reinstatement under INA § 241(a)(5), it is troubling that the Attorney General has not provided a means for judicial review. As our previous articles have discussed, INA § 241(a)(5) allows the Attorney General to reinstate removal orders against aliens who have 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 the Act and may be removed under the prior order at any time after the reentry. Unless covered under a limited number of exceptions, immigrants who return to the United States illegally after having been removed under a prior order of deportation, exclusion, or removal are subject to removal under INA §241(a)(5).
Writing for the dissent, Circuit Judge Thomas notes with concern that reinstatement will be made by “a low-level Department of Homeland Security employee who serve[s] as both prosecutor and judge.” Indeed, Mr. Morales never received notice of his prior deportation, and appeared at an adjustment of status interview without an attorney just to be detained with the removal order reinstated. Under Morales-Izquierdo v. Gonzales, an immigration official can simply reinstate the removal order and the applicant may be detained until he is removed from the United States, often leaving behind United States citizen family.
Although the Court’s decision denies the opportunity for many aliens to challenge prior removal orders, there still remains a possibility that an alien can avoid reinstatement by filing an application for advance permission to reapply before reinstatement occurs. If granted, the application will cure the illegal reentry nunc pro tunc (retroactively). However, such an affirmative application may not be advisable because the same immigration officer, who will adjudicate the waiver, may also be the “prosecutor and judge.” We strongly encouraged individuals to seek the advice of an expert immigration attorney to find out whether there were any prior orders of deportation/removal and what relief may be possible.