By Attorneys Robert L. Reeves and Lorena Larios Shah
Immigration Customs Enforcement (ICE) raids continue to be a serious concern for immigrants in the United States ICE agents’ main target is individuals with deportation/removal orders who failed to depart or departed, but returned to the United States illegally.
A noncitizen who is found to have reentered the United States illegally after having been previously removed, or having departed voluntarily under an order of removal, may have the prior removal order against him or her reinstated. The reinstatement order is not subject to being reopened or reviewed by an immigration judge and the noncitizen is not eligible for any relief, with very few exceptions.
If the noncitizen expresses a fear of returning to the country designated in the reinstatement order, he or she will be referred to an asylum officer for a ”reasonable fear” interview. Reasonable fear interviews address asylum issues. Under the regulations noncitizens subject to reinstatement are eligible for withholding of removal (a type of asylum relief), but are not eligible for formal asylum. A noncitizen that has lawfully reentered the country, even if he/she was previously the subject of an order of removal, may not be subject to reinstatement.
Noncitizens with prior deportation/removal orders who never left the U.S. are also vulnerable to immediate detention and removal from the U.S. It is important to note that immigration law allows some noncitizens with prior deportation/removal orders to reopen their immigration case and pursue some form of relief that can lead to legal permanent residency and citizenship. It is imperative that individuals with deportation or removal orders seek the immediate assistance of a reputable and highly experienced immigration attorney to evaluate whether the case can be reopened.
Generally, a motion to reopen must be filed within 90 days from the date the deportation/removal order was issued. A motion to reopen must also state new facts that were not previously available. However, there are exceptions to the 90 day filing which includes a person who was ordered removed for failure to appear and never received notice of the time and place of the hearing; or an instance in which there exists a change in country conditions in the person’s home country and the person fears returning. A motion to reopen may also be filed if the individual was a victim of ineffective assistance by their previous attorney or fraud by a non-lawyer such as a notary, paralegal, or immigration consultant. Along with the motion to reopen, an immigration attorney can request a stay of removal on behalf of an immigrant. If a stay of removal is granted, ICE cannot remove the individual from the U.S. while the motion is being reviewed. In some cases, a stay of removal is automatically set in place when the motion to reopen is properly filed.
Consulting with an experienced immigration lawyer is extremely important given the present political climate in the U.S. More so than ever before, it is critical for those with prior deportation/removal orders to have their cases reviewed.