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1 1 (January 22, 2021)

handle is hein.crs/goveblj0001 and id is 1 raw text is: Informin th leiltv dbtsIce14 0 January 22, 2021 Reinstatement of Removal: An Introduction The Immigration and Nationality Act (INA) establishes removal processes for different categories of non-U.S. nationals (aliens) who do not meet requirements governing their entry or continued presence in the United States. Most removable aliens found in the interior of the country are subject to formal removal proceedings under INA § 240. Aliens in these proceedings have certain procedural guarantees including the right to appear at a hearing before an immigration judge (IJ), to pursue relief from removal, and to appeal an adverse decision. But the INA sets forth a streamlined reinstatement of removal process for certain aliens who unlawfully reenter the United States after being removed-a process that accounts for a considerable number of the removals of aliens found in the interior of the United States. This In Focus provides a brief introduction to the reinstatement of removal framework. Statutory Framework and Implementation An alien ordered removed from the United States is generally barred from reentering the country for a specified period (5 or 10 years for different categories of first-time removals; 20 years for those removed two or more times; and a permanent bar for those convicted of an aggravated felony). The current reinstatement of removal process, created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, is codified in INA § 241(a)(5), and applies to those aliens who unlawfully reenter the country after being removed from (or having departed voluntarily from) the United States under an order of removal. For those aliens, the prior order 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' from removal, and shall be removed under the prior order at any time after the reentry. These rules apply regardless of whether the alien is apprehended at the border or in the interior of the United States, and irrespective of how long the alien has lived in this country. The Supreme Court has held that INA § 241(a)(5) may be applied even if an alien unlawfully reentered the United States before the statute's effective date (April 1, 1997), if the alien chose to remain unlawfully in the country after that date. Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). But some lower courts have ruled that § 241(a)(5) does not apply to aliens who reentered and tried to legalize their immigration status before that date. See e.g., Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011). Department of Homeland Security (DHS) regulations codified at 8 C.F.R. §§ 208.31 and 241.8 set forth certain procedures in reinstatement cases. First, the examining immigration officer must determine that the alien has a prior order of removal. Second, the officer must verify that the alien was previously removed (or voluntarily departed) from the United States under that order. And third, the officer must confirm that the alien unlawfully reentered the United States. If the officer concludes that the alien is subject to reinstatement, INA § 241(a)(5) requires the alien's removal under the reinstated order, and the alien has no right to an administrative hearing before an IJ though, as discussed below, federal court review may be available. Most courts have interpreted INA § 241(a)(5) as barring the reopening of the alien's prior removal proceedings to challenge the reinstated order and seek relief from removal. See e.g., Rodriguez-Saragosa v. Sessions, 904 F.3d 349 (5th Cir. 2018). But the U.S. Court of Appeals for the Ninth Circuit has held that an alien may file a motion to reopen, seeking to rescind a prior order of removal, if it had been entered in absentia based on the alien's failure to appear at a hearing and the alien had not received notice of that hearing. Miller v. Sessions, 889 F.3d 998 (9th Cir 2018). Exceptions to Reinstatement of Removal Generally, an alien subject to reinstatement is removed from the United States without a hearing or any review of the reinstated removal order, and the alien may not pursue any relief from removal. But there are certain exceptions. Reasonable Fear Determinations An alien subject to reinstatement who expresses a fear of returning to the country of removal is entitled to administrative review of that claim before removal. Under DHS regulations, 8 C.F.R. §§ 208.31 and 241.8, the examining officer shall refer the alien for an interview with an asylum officer to determine whether the alien has a reasonable fear of persecution or torture. A reasonable fear screening evaluates whether an alien might qualify for two forms of relief: withholding of removal and protection under the Convention Against Torture (CAT). The reasonable fear standard is stricter than the credible fear standard used to determine whether certain aliens arriving at ports of entry and recent, first-time unlawful entrants placed in expedited removal proceedings might qualify for asylum. Unlike asylum, which provides an alien with a permanent legal foothold in the United States, withholding of removal and CAT protection only bar removal to the country where the alien fears persecution or torture (but not necessarily to an alternate country), and afford no pathway to lawful permanent resident (LPR) status or citizenship. The reasonable fear screening does not fully assess an alien's withholding of removal or CAT claims, but only whether they are viable enough to warrant more thorough review. An alien who shows a reasonable fear of persecution or torture is referred to an IJ for consideration of withholding ittps://Crsreports.congress.gt

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