By Attorneys Robert L. Reeves and Nancy E. Miller
Being deported from the United States is traumatic enough. However, the deportation order may be just the beginning of an alien’s troubles. An alien who has been ordered deported but has not left is subject to being picked up at any time. If he marries or has a labor certification approved and files for a green card, he may be taken into custody when he appears for the green card interview. For one who has been deported, the order can be reinstated if the alien unlawfully returns to the United States. Recent cases from the United States Court of Appeals for the Ninth Circuit have addressed some of these issues.
Reinstatement provisions existed before 1996. However, until 1996, an alien who reentered the United States illegally after having been excluded, deported, or having departed after the expiration of an order of voluntary departure, was entitled to a hearing before an immigration judge. The judge was required to determine the identity of the alien, whether the alien had previously been deported and whether the alien illegally reentered the U.S. The alien could contest the charges and evidence, present evidence, and apply for relief from deportation. If the alien disagreed with the judge=s decision, he could appeal to the Board of Immigration Appeals and then to the federal circuit courts of appeals.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which became effective on April 1, 1997, changed reinstatement. The changes applied to aliens under orders of exclusion, deportation, removal and untimely voluntary departure exits from the United States. Under ‘241(a)(5) of the Immigration & Nationality Act (INA) and 8 C.F.R. 241.8(a), reinstatement is treated as a summary proceeding with no right to a hearing before an immigration judge. The immigration officer decides whether the alien is the subject of a prior removal or deportation order; whether the alien is the person who was previously removed; and, whether the alien unlawfully reentered the U.S. If the answer to all three questions is Ayes@, the order is reinstated. Relief is very limited. Aliens who fear persecution or torture may be eligible to apply for withholding of removal or protection under the Convention Against Torture. Aliens, where eligible, may also apply for relief under the Haitian Refugee and Immigrant Fairness Act (HRIFA) or the Nicaraguan Adjustment and Central American Relief Act (NACARA).
Reinstatement orders may be appealed to the federal circuit courts of appeals but review is limited to the three issues addressed by the immigration officer. In a recent Ninth Circuit Court of Appeals case, Arreola-Arreola v. Ashcroft, the court held that the underlying removal order can be reviewed by means of a writ of habeas corpus in federal district court. In Arreola, the alien was found to be an aggravated felon because of a driving under the influence (DUI) conviction. Since the Ninth Circuit had subsequently found that DUI=s are not aggravated felonies, Arreola argued that his removal order was invalid. The Ninth Circuit held that it did not have jurisdiction to review the validity of the order. It ruled, however, that the district court did have jurisdiction by means of habeas corpus. It transferred the case to the district court for that purpose.
This is not the only relief granted by the Ninth Circuit to ameliorate the harshness of IIRIRA=s deportation provisions. Some other cases have also attempted to inject some fairness into the law passed in 1996.
In the first of these three cases, Castro-Cortez v. INS, the court held that IIRIRA=s summary reinstatement provisions can not be applied to aliens who both left and returned to the U.S. prior to April 1, 1997. Because the alien could not have anticipated the consequences of reentry under the new law, retroactive application of the law is unconstitutional. For aliens who left and returned prior to IIRIRA=s effective date, summary reinstatement does not apply. The alien must be brought in front of an immigration judge and can apply for relief.
In the second of the relevant cases, Perez-Gonzalez v. Ashcroft, the Ninth Circuit held that aliens may apply for nunc pro tunc permission to reapply for admission. In other words, an alien, who has previously been deported and has illegally returned to the U.S., can apply for permission for that previously-made illegal entry. The Ninth Circuit also held that this relief can be applied for by the alien while he is in the United States and that he can not be deported while it is pending. In fact, the filing of the application for relief prior to the reinstatement of the deportation order, allows the alien to file for adjustment of status (assuming eligibility through an approved and current petition) and renders him immune from reinstatement while the application is pending. Since the DHS had taken the position that aliens who were deported could not apply for such relief until they had left the country, this is a very important and positive development.
In the third positive development, the Ninth Circuit ruled in Morales-Izquierdo v. Ashcroft, that the reinstatement regulation allowing the immigration officer to reinstate a deportation order conflicts with ‘240(a) of the INA and is invalid. The court held that reinstatement orders must be made by an immigration judge. It is the judge who is charged with determining inadmissibility. Illegal reentry after removal is a ground of inadmissibility under ‘212(a)(9)(C) of the INA. Therefore, aliens must be brought in front of a judge for reinstatement. Additionally, since Perez-Gonzalez v. Ashcroft allows the alien to apply for permission for reentry and for relief, it is plausible that such relief can be sought in front of the judge.
The cases described above have all dealt with aliens who were ordered deported and who left and illegally returned. There is, of course, another group of people – those who were ordered deported and who never left. The law is not clear when it comes t o them. A person ordered deported and does not leave does not need to have his order reinstated. Upon the alien being taken into custody, the order simply has to be enforced by removal. Additionally, the alien can only seek adjustment of status from the immigration judge. However, motions to reopen the court case for new facts (such as an approved immigrant visa petition) must be filed within 90 days of the date of the final order, unless the government lawyers agree to join in the motion to reopen. Moreover, if an alien is granted voluntary departure and does not leave, he is subject to a 10-year bar before he is eligible for relief. In Velezmore v. Ashcroft, the Ninth Circuit held that once the punishment of the 10-year bar has passed, the alien is eligible to apply for relief. Perez-Gonzalez would seem to suggest that an alien who has not left can apply for advance permission to reapply for admission before the passage of the ten years. That admission can be interpreted to mean the granting of a green card. If the permission is granted, two questions still exist. How does the alien get the case in front of the judge and does the advance permission negate the deportation order and allow the CIS to decide the case? These issues have not been fully addressed or resolved.
Unfortunately, many other federal circuits do not agree with the Ninth Circuit. For aliens in those jurisdictions, these positive changes may not apply. Even for aliens in the Ninth Circuit, the burden of proving eligibility for permission to reapply and for other relief will be high. Aliens in this position should seek the advice and assistance of an attorney who is experienced in immigration and, especially in deportation, matters.