Can You Trump This? Part I - Dealing with Reinstatement of Removal Orders in the Trump Administration

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Overview

Three days after the presidential inauguration, I am still in a state of bewilderment that the “The Donald” is the new Commander and Chief. Reality is slowing setting in and my expectation is the immigration landscape will experience a 180 degree shift pretty quickly. I am expecting both “shoes” to drop at the same time. I am expecting a new executive order rescinding President Obama’s executive order regarding DACA and DAPA. I am expecting an executive order to cut off federal funding to Sanctuary cities in short order. I expect ICE with the support of local police to step up raids of housing areas where undocumented immigrants live. I expect these efforts to be more intense in the Deep South. I expect ICE to accelerate the removal of immigrants with crimes that make the immigrants deportable and inadmissible.

The question now is what do you do if you are currently in the United States as an undocumented person after having previously been deported. The new administration is considering a mandatory minimum two-year sentence for those reenter have previously having been deported. The new administration is considering a minimum sentence of five years for undocumented immigrants with a felony conviction or multiple misdemeanors who reenter after previously having been deported.

This article is intended to serve as a guideline of potential remedies for undocumented who reentered the United States with a prior removal. It is always best to have your Plan B or Plan C considered in case “disaster” strikes and the federal government initiates an order to reinstate removal.

Summary of Reinstatement of Removal

Reinstatement of Removal is a removal procedure (INA§ 241(a)(5); 8 U.S.C. § 1231(a)(5), 8 C.F.R. § 241.8.). The criminal charge for The statute applies to non-citizens who return to the United States illegally after being deported under a prior order of removal or deportation. Reinstatement of Removal account for more deportations that any other source according to the Transactional Record Access Clearing House Immigration Report.

Reinstatement of Removal is applicable to an alien that (1) Has entered the U.S. illegally (2) After having been removed or departed voluntarily under an order of removal. The prior 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 INA and is removable under the prior order at any time after the reentry. Individuals who meet all three statutory conditions – (1) a prior order of removal (2) a departure from the United States and (3) An illegal reentry) – fall under INA § 241(a)(5) unless they fall under a statutory or judicial exemption.

Generally, a person enters the United States legally when admitted following inspection and authorization by an immigration officer. Thus, if a person has entered the country legally, the Government should reinstate a prior removal order. For example, ICE in the last year has extended humanitarian parole to aliens crossing the border with their U.S. citizen or non-citizen children who are minors. The grant of humanitarian parole is arguably a legal entry. Nevertheless, different jurisdictions view the issue differently.

Certain statutory exemptions exempt for Central Americans covered under the Nicaraguan Adjustment and Central American Relief Act (NACARA). Another exemption exists for individuals applying for adjustment of status who are covered by certain class action lawsuits litigated in 1993. Several federal circuits of appeal have judicially exempted individuals who reentered the United States and applied for relief prior to the effective date of INA § 241(a)(5) which was April 1, 1997.

The statutory language of INA § 241(a)(5) provides that once DHS reinstates a prior order of removal the undocumented immigrant is not eligible and may not apply for any relief from removal. Nevertheless, there are several statutory exemptions from the bar of relief from removal.

  1. Withholding of Removal and UN Convention Against Torture (CAT)

DHS must refer individuals who express a fear of return during the reinstatement of removal process to an asylum officer for a “reasonable fear” interview. In the event that the asylum office determines that the persona has a reasonable fear of fear or persecution in returning to their home country, the persona may apply for withholding of removal or relief under CAT in Immigration Court. The person has the right of appeal from Immigration Court to the Bureau of Immigration Appeal (BIA) in the event the immigration judge denies the application.

In the event the asylum officer determines that the applicant fails to meet the reasonable fear of persecution threshold, If the asylum officer determines the person did not establish a reasonable fear of persecution, the determination may be reviewed by the immigration judge. The immigration judge may overturn the asylum officer’s decision.

In spite of the bar to relief, individuals who would otherwise have a valid asylum claim may have an argument that they are eligible for asylum in spite of the bar. The Supreme Court has ruled several times that asylum remains available to individuals subject to reinstatement of removal. The plain language of the asylum statute states that asylum statute should apply to “Any Alien who is physically present in the United States.”

  1. T and U Visa Non-Immigrant Status

Victims of trafficking who qualify for a T visa or victims of serious crimes who qualify for a U visa may argue that reinstatement of removal does not apply to them. Both non-immigrant visa programs provide a waiver for virtually all grounds of inadmissibility. The order of removal is deemed canceled when the application for T and u visa status is approved.

  1. Violence Against Women’s Act (VAWA)

Similarly, individuals who are eligible for adjustment of status under a VAWA claim may also find a pathway for exemption.  Congress has enacted waivers from virtually every ground of inadmissibility for VAWA claims. Congress has directed agencies to grant applications to waive inadmissibility in reinstatement of removal cases.

Summary

The President has moved swiftly to keep his campaign promises with respect to immigration. In a span of days, President Trump has signed executive orders to build a Wall on the border with plans to tell Mexico’s president next week that he expects Mexico to pay for the construction of the Wall. Another executive order purports to cut off federal funds to sanctuary cities. Another executive order plans to reinstate the Secure Communities program that was a partnership between local law enforcement and ICE. Expect to hear a lot more coverage in the near future of workplace raids and door-to-door visits in neighborhoods where immigrants are known to live. The level of removal cases will increase exponentially over the next year.

In spite of the large quantity of bad news, the good news is that strong remedies exist for relief from removal. The typical asylum case currently in the Courts can take three-five years once the appeal process is considered. The dramatic increase in removal cases will create an immense delay in the courts. The existing process for asylum; withholding of removal; CAT and U and T visas allow for the issuance of work permits during the process. The issuance of a work permit should allow the person to obtain a social security number and the ability to obtain a valid driver’s license during the pendency of the case. In the right venue, the person has a better than fifty percent chance of winning the case. In some instances, those odds improve to eight percent. To coin a sports cliché, “It aint over until the Fat Lady sings”.

 

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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