By Robert L. Reeves and Lorena Larios Shah
The recent Supreme Court decision of Fernandez-Vargas v. Gonzales, 2006 U.S. LEXIS 4892 (June 22, 2006), has caused great concern among many undocumented immigrants. The Supreme Court held that §241(a)(5) of the Immigration and Nationality Act (Act) might be applied retroactively to individuals who were previously ordered deported and who reentered the United States before April 1, 1997 and did not take any steps to legalize his or her unlawful status in the U.S. before that section took effect. In Fernandez-Vargas, the petitioner was ordered deported in 1981 and reentered the U.S. illegally in 1982. He remained in the U.S. and started a trucking business. In 1989, he had a U.S. citizen child and married his son’s mother in 2001. His U.S. citizen wife filed a relative visa petition on his behalf. In November of 2003, the Department of Homeland Security reinstated Fernandez-Vargas’ 1981 deportation order and he was not allowed to adjust his status to that of a lawful permanent resident. He was subsequently removed to Juarez, Mexico.
To understand the impact of this case it is important to explain what §241(a)(5) of the Act is and whom it affects. Section 241(a)(5) of the Act allows the Attorney General to reinstate removal orders against aliens who have reentered the U.S. 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. Immigrants who return to the U.S. illegally after having been removed under a prior order of deportation, exclusion, or removal are subject to removal under §241(a)(5) unless an individual’s case falls under a statutory or judicial exception: individuals applying for adjustment of status under the legalization program; Salvadoran, Guatemalan, and Eastern European applicants under NACARA; Nicaraguans and Cuban applicants for adjustment under §202 of the Act; and, Haitian applicants for adjustment under the Haitian Refugee Immigration Fairness Act of 1998. Individuals in the Ninth Circuit (California and eight other Western states) who have filed an application for adjustment of status and application for permission to reapply for admission to the U.S. after deportation or removal prior to a reinstatement determination, may be judicially exempt from reinstatement of removal. Please note that only a legal professional, such as an experienced immigration attorney, can properly evaluate a person’s case and determine whether the individual will be exempt.
The Court’s decision of Fernandez-Vargas affects every circuit differently. For instance, the case overturned the Ninth Circuit’s decision in Castro-Cortez et al. v. INS, 239 F.3d 1037 (9th Cir. 2001), which held that Congress did not intend for §241(a)(5) to apply to individuals who reentered before April 1, 1997. The Fernandez-Vargas case also raised the issue of who can determine whether an individual is removable under §241(a)(5). In Morales-Izquiero v. Ashcroft, 388 F.3d 1299 (9th Cir. 2004), the Ninth Circuit held that only immigration judges can determine whether an individual is removable- the government requested a rehearing and this decision is currently pending. Currently, Department of Homeland Security Officers decide whether to reinstate a prior removal order.
If you are served with a reinstatement of removal order you should immediately contact an immigration attorney. An attorney can assist in challenging the reinstatement of removal order. Reinstatement orders can be appealed to the circuit court having jurisdiction over the place the reinstatement order was issued. It is important to point out that the Court in Fernandez-Vargas did not decide whether §241(a)(5) can be applied retroactively to someone who did take affirmative steps to legalize their status, such as by filing an adjustment of status application, an immigrant visa petition, labor certification application, asylum application or Temporary Protected Status. Therefore, individuals who made affirmative steps towards legalizing their immigration status prior to April 1, 1997 should challenge the retroactive application of §241(a)(5). Furthermore, the Court in a footnote indicated that an individual subject to reinstatement of removal may seek withholding of removal which raises the possibility of asylum as a form of relief as well.
Often times individuals are unaware of the existence of a prior removal order because he or she was ordered removed in absentia (failed to show up to court) or were removed in an expedited manner at the border. Therefore, it is strongly encouraged for individuals to seek the advice of an experienced immigration attorney to find out of any prior orders of removal prior to the filing of any application with the Citizenship and Immigration Services.