By: Attys. Robert L. Reeves & Nancy E. Miller

The Ninth Circuit Court of Appeals has returned some measure of protection to aliens who have illegally returned to the U.S. after having been deported.

Until 1996, an alien who reentered the United States illegally after having been removed or having departed voluntarily under an order of removal were 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. At that hearing, the alien was able to contest the charges and evidence, present his or her own evidence, and apply for relief from deportation. If the alien disagreed with the decision of the immigration judge, he could appeal the adverse decision to the Board of Immigration Appeals and then to the federal courts of appeal.

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IRRIRA) which restricted many rights previously afforded to non-citizens of the U.S. Among those restrictions was a section of law that allowed immigration officers to reinstate previously issued deportation orders. Under IRRIRA, if an alien was found to have illegally reentered the U.S. after having been removed or having left under a grant of voluntary departure, the prior order of removal was reinstated from its original date and was not subject to being reopened or reviewed. The alien was not eligible and could not apply for any relief and was removable at any time after reentry. From a practical purpose, that meant that anyone who illegally reentered the U.S. after having been deported could be picked up and summarily removed from the U.S. This happened most often when a previously deported alien filed to adjust his status after having married a United States citizen or having a labor certification approved. At the time set for the adjustment interview, the alien was taken into custody and removed.
That is what happened to Raul Morales-Izquierdo. He had entered the U.S. illegally. After having been stopped at the border, he failed to appear at his court hearing and was order deported in his absence. He was subsequently removed from the U.S. He tried to reenter with a false border crossing card and was removed expeditiously for misrepresentation of a material fact. He illegally reentered the next day. Several years later, he went for an adjustment interview based on his marriage to a U.S. citizen. He was taken into custody and his deportation order was reinstated.

In reviewing his case, the Ninth Circuit Court of Appeals held that the reinstatement provisions of IRRIRA violated the plain language of the Immigration & Nationality Act. The court held that the Act stated unambiguously that the immigration judge must decide the inadmissibility or deportability of an alien. An alien who was previously removed under any provision of law and who subsequently reentered the U.S. without being admitted is inadmissible and may be charged as such. The determination of whether an alien’s prior deportation order should be reinstated is, actually, a determination of whether that alien is inadmissible. The power and authority to make that determination rests with the immigration judge.

This means that an alien who has been previously deported and has illegally returned to the U.S. must, upon being apprehended, be brought before an immigration judge. At that time, the alien can apply for any relief for which he may be eligible. While this is a step back in that it goes back to old law, it is also a step forward in that it gives non-citizens rights to due process and the ability to apply for relief that IRRIRA took away from them. It gives hope back to aliens who were so desperate to return to their life and family here in the U.S. that they returned illegally despite their deportation order. If they now have a way of immigrating, they can apply for it before the immigration judge. Anyone in this situation should consult an attorney experienced in immigration law to make sure they are afforded all their rights.