Reinstatement Of Removal
What is Reinstatement of Removal? 
On April 1, 1997, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) was enacted and amended many provisions of the Immigration and Nationality Act (INA) by eliminating or at least reducing eligibility for various forms of relief. Reinstatement of removal was one of the particularly harsh penalties created when §305(a) of IIRIRA amended §241(a)(5) of the INA.
INA § 241(a)(5) states, “if the Attorney General finds that an alien has reentered the United States 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 this chapter, and the alien shall be removed under the prior order at any time after the reentry.”
Reinstatement of removal is applied to noncitizens who reenter the United States illegally after having been removed under an order of deportation and makes such individuals ineligible for all forms of discretionary relief, including adjustment of status, under the INA. It does not apply to noncitizens who were ordered deported or excluded but failed to comply with the order.
Various Courts of Appeals as well as the U.S. Citizenship & Immigration Services (CIS) have held that the provisions of IIRIRA, including the reinstatement provision, apply retroactively to individuals who were excluded or deported prior to April 1, 1997 but reentered illegally after April 1, 1997.
It should be noted that prior to the effective date of IIRIRA, individuals who were excluded from the United States for failure to possess the proper entry documents or who were present in the United States without being admitted or paroled were barred from reentering the United States for a period of one year. Individuals who were deported from the United States were barred from reentering for five years.
After IIRIRA became effective, the prohibition on reentry was generally increased to ten years for individuals deported or individuals who departed the United States while an order of removal was outstanding.
Application of IIRIRA to Persons Deported or Excluded Prior to April 1, 1997
On March 31, 1997, Paul W. Virtue, Acting Executive Associate Commissioner, Legacy Immigration & Naturalization Service, issued a memorandum regarding the new grounds of inadmissibility created by IIRIRA. In this memorandum, Mr. Virtue acknowledged that the new periods of inadmissibility applied to individuals who were excluded or deported from the United States prior to April 1, 1997 and the only exception that existed was for individuals who, prior to their reentry into the United States, obtained consent from the Attorney General to reapply for admission. Mr. Virtue appeared to understand how unfair and harsh it was to retroactively apply the lengthier inadmissibility periods to individuals expelled prior to IIRIRA’s effective date by stating that “the Service is considering a regulation or policy that would grant this exception to aliens excluded or deported prior to April 1, 1997, who had either been subsequently lawfully admitted to the United States or granted an immigrant or nonimmigrant visa prior to the effective date of the new, lengthier prohibitions against readmission.” To date, no regulations creating an exception for individuals excluded or deported prior to April 1, 1997 have been promulgated.
This retroactivity means that a person who was excluded under the pre-IIRIRA law and prohibited from returning to the United States for a one-year period was now subject to the 10 year bar on reentry and therefore did not satisfy his or her exclusion order merely by remaining outside of the United States for one year. For example, if an individual was ordered excluded from the United States for a period of one year in August 1996, self-executed the exclusion order by returning to his or her home country until August 1997, and then reentered the United States without inspection in September 1997 because he or she believed that the exclusion order was satisfied, then the individual would be subject to the reinstatement of removal provision because the period of exclusion was increased to 10 years, unbeknownst to the excluded individual, when IIRIRA became effective on April 1, 1997. There is no form of discretionary relief available to this person.
While entering the United States illegally after being previously deported is problematic, there is something inherently unfair and unjust in changing a penalty, in essence a sentence, without informing the affected party in advance of the new penalty and the possible adverse consequences for violating the new law. For example, would it not be unfair, if not unconstitutional, to sentence an individual to one year of incarceration and at the end of the one year sentence, when the individual believes that he or she has complied with the terms and conditions of punishment, to then advise the individual that the laws have changed and the sentence has been extended for an additional nine years? It is hoped that the Department of Homeland Security will take this into consideration when promulgating the long awaited regulation on who is subject to the new ten year bar for a pre-1996 deportation or exclusion order and thus not subject to the reinstatement provision under INA §241(a)(5).
In our example above, once the individual entered the United States without inspection after remaining out of the United States for only one year, the reinstatement of removal provision could possibly be triggered because the individual was automatically subject to a ten-year prohibition on reentry.
Who is Protected from Reinstatement?
There are certain individuals who are statutorily protected from the reinstatement of removal provision under §241(a)(5) of the INA. These individuals include: applicants for adjustment of status under §245A of the INA; applications for adjustment of status under the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) such as nationals of Nicaragua, Cuba, El Salvador, Guatemala, and Eastern Europe; and nationals of Haiti who apply for adjustment of status under the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA).
The reinstatement of removal provision does not apply to noncitizens who did not execute their removal orders by leaving the United States. In addition, the reinstatement provision does not apply to excluded or deported individuals who, prior to returning to the United States, obtain consent from the Attorney General to reapply for admission.
There are also certain individuals who are judicially protected from the reinstatement of removal provision. These include: individuals who applied for discretionary relief before the effective date of IIRIRA [Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003); Faiz-Mohammed v. Ashcroft, 395 F.3d 799 (7th Cir. 2005); Sarmiento-Cisneros v. Ashcroft, 381 F.3d 1277 (11th Cir. 2004)]; individuals who departed the United States under a prior order of removal and reentered illegally prior to the effective date of IIRIRA [Bejjani v. INS, 271 F.3d 670 (6th Cir. 2001); Castro-Cortez et al. v. INS, 239 F.3d 1037 (9th Cir. 2001)]; individuals who could have defended against deportation by filing an application for relief, even if this defense was not perfected until after April 1, 1997 [Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir. 2002); Lopez-Flores v. DHS, 376 F.3d 793 (8th Cir. 2004)]; and individuals who filed applications for adjustment of status and for permission to reapply for admission (I-212 waiver) to the United States after deportation or removal but prior to the reinstatement determination [Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004)].
Given the harshness of reinstatement of removal and the limited classes of individuals who are statutorily and judicially protected from the reinstatement provision, what should a practitioner do if his or her client does not fall into one of the protected classes? The best offer of hope comes from the 9th Circuit Court of Appeals decision in Perez-Gonzalez v. Ashcroft, supra, which held that while the reinstatement provision can be retroactively applied, it will not be applied to an individual who filed applications for adjustment of status and for permission to reapply for admission to the United States, if these applications are filed prior to the reinstatement determination and the I-212 application is ultimately approved. In addition, the Court held that simply because someone was subject to the reinstatement provision did not categorically make him or her ineligible for adjustment under INA §245(i).
In Perez-Gonzalez, the Petitioner entered the United States without inspection in 1992 and was convicted of a firearms offense in 1994. Shortly thereafter, he was ordered deported and removed to Mexico. In 1995, he entered the United States without inspection and in 1997, married a U.S. citizen. His U.S. citizen daughter was born in 1999. In that same year, he and his U.S. citizen family traveled to Mexico to visit relatives and he returned to the United States, entering without inspection, in December 1999.
In April 2001, his U.S. citizen wife filed an I-130 on his behalf, which was approved. In April 2002, he filed for adjustment of status and was scheduled for an interview in June 2002. At the adjustment interview, his application was denied because he was told to file an I-212 application. In July, the Petitioner filed an I-212 application and was scheduled for an interview in October 2002. When he appeared for the interview, he was arrested. On that same day, the I-212 was denied by CIS because the Petitioner filed the application when physically in the United States. In addition, CIS issued the reinstatement order.
The 9th Circuit held that, as the Petitioner filed the adjustment application and I-212 application before the reinstatement determination was made, “had the INS exercised its discretion in Perez-Gonzalez's favor, he would no longer be subject to the reinstatement provision as he would no longer be considered an illegal entrant.”
It is critical, therefore, for all practitioners to examine their clients’ history with the immigration service, particularly their means of entry into the United States, and to be cognizant that there are no statutory forms of discretionary relief available to their clients if the reinstatement provision applies. In this regard, if a practitioner determines that the reinstatement provision applies to his or her client and the client wishes to remain in the United States, then applications for adjustment of status and for permission to reapply for admission to the United States must be filed prior to the CIS making a determination that the reinstatement provision applies to the client.
It has yet to be determined whether other Circuit Courts of Appeals will entertain this argument, but for now, it is one possible form of relief available for individuals who are subject to reinstatement of removal provision.
What is the Effect of INA §212(a)(9)(C) on 8 CFR §212.2(e) and INA §245(i)?
Under post-IIRIRA law, an individual who has been ordered removed and attempts to reenter or enters the United States without being admitted is permanently inadmissible under INA §212(a)(9)(C). This is an impediment in addition to reinstatement of removal.
What is the effect of this permanent bar on affected individuals who apply for an I-212 waiver under 8 CFR §212.2(e) and adjustment of status under INA §245, especially INA §245(i) as modified by the 2000 Life Act, and are also subject to the reinstatement of removal provision at INA §241(a)(5)? Two Courts of Appeals addressed this issue and reached two completely opposite and conflicting conclusions.
In Perez-Gonzalez v. Ashcroft, supra, the 9th Circuit held that individuals subject to the reinstatement of removal provision under INA §241(a)(5) and the permanent bar on admissibility at §212(a)(9)(C) were not barred from applying for I-212 relief and adjustment of status under INA §245(i) because to hold otherwise would render the regulations and statute to be illogical.
In reaching this decision, the 9th Circuit Court reviewed: the May 1, 1997 memorandum of Louis D. Crocetti, Jr., Associate Commissioner with the legacy Immigration & Naturalization Service, which stated that individuals subject to INA §212(a)(9)(C) were barred from applying for adjustment of status under INA §245(i); and the congressional intent and purpose behind Congress’ enactment of INA §245(i). The Court found that the INS memorandum deserved no deference because if read in conjunction with the statute and regulations, which permitted illegal reentrants to apply for adjustment of status under INA §245(i) and a waiver of inadmissibility under 8 CFR §212.2, the memorandum simultaneously and categorically barred such illegal reentrants from eligibility for adjustment of status due to their inadmissibility. While illegal reentrants were encouraged to apply for relief, such applications for relief would be futile because they would be categorically denied due to the very circumstances that led to the relief being required. Accordingly to the Court, the only interpretation that made sense was that the reinstatement provision would not attach so long the applications for adjustment of status and I-212 waiver were filed before the reinstatement determination and the I-212 was eventually approved.
The 10th Circuit Court of Appeals reached the exact opposite conclusion in Berrum-Garcia v. Comfort, 390 F.3d 1158 (10th Cir. 2004), where it held that the language in INA §241(a)(5) barred all forms of discretionary relief, regardless of the timing of the applications for relief, and that there was no conflict between INA §245(i) with regard to the application of either §241(a)(5) and §212(a)(9)(A) because even if the petitioner's Form I-212 application was approved, it would not have "cured" the illegal reentry and the petitioner would still be subject to reinstatement of removal. The approval of an I-212 application only makes the applicant "admissible; it does not admit him."
The 10th Circuit Court expressly disagreed with the 9th Circuit Court's holding in Perez-Gonzalez claiming, in effect, that the 9th Circuit Court misunderstood the language of 8 CFR §212.2(e). According to the 10th Circuit Court, 8 CFR §212.2(e) only permitted aliens who entered illegally to apply for relief, but that it did "not explicitly extend that privilege to aliens who have illegally reentered the country after a prior deportation or removal."
It is hoped that other Circuit Courts, when presented with a similar issue, will follow the 9th Circuit Court’s decision in Perez-Gonzalez, which held that an application for adjustment of status, accompanied by an I-212 waiver, trumps the reinstatement of removal and the permanent bar to inadmissibility provisions.
A version of this article originally appeared on http://www.cyrusmehta.com/.
 For more in depth information regarding reinstatement of removal please refer to the AILF Practice Advisory on Reinstatement of Removal, written by Trina A. Realmuto and Robert Pauw of the American Immigration Law Foundation (April 18, 2005), www.ailf.org.
 The Department of Homeland Security has taken the position that withholding of removal is still available to individuals whose deportation orders were reinstated because withholding is mandatory, not discretionary, under the INA.
 INA §212(a)(9)(A)(ii).
 A copy of the actual memorandum is available at the American Immigration Lawyers Association, InfoNet Document No. 97033190.
 Please see the AILF Practice Advisory on Reinstatement of Removal for further details on reinstatement of removal case law.
 INA §212(a)(9)(C) states that “any alien who...has been ordered removed under §235(b)(1), §240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.” The statute provides a waiver for aliens seeking admission after being out of the United States for at least 10 years following the alien’s last date of departure and for battered spouses and children if they can establish a link between the battery or cruelty and their removal.
 Even though Perez-Gonzalez and Berrum-Garcia contradict each other, the latter can be distinguished from the former because the non-citizen in Berrum-Garcia was removed under post-IIRIRA law while Perez-Gonzalez involved the retroactive application of post-IIRIRA law on an individual who was deported under pre-IIRIRA law. Thus, it should be argued that the INA §212(a)(9) bars do not apply to a non-citizen who left under a deportation or exclusion order before 1996 and then reentered after IIRIRA’s enactment, as was the case in Perez-Gonzalez. See also Lopez-Flores v. Department of Homeland Security, 376 F.3d 793 (8th Cir. 2004).
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.
Lin Walker received a Master of Arts degree in Criminal Justice from Rutger's University in 1997 and her Juris Doctorate in 2000 from the Benjamin N. Cardozo School of Law. Since 2000, Ms. Walker has practiced immigration and nationality law and has worked on cases involving business and employment immigration, family immigration, consular matters, and immigration court litigation. Ms. Walker is admitted to practice law in New York and New Jersey. She is also member of the American Immigration Lawyers Association.