It would take pages and pages—far more words than would fit into this blog—for me to describe all the unjust provisions in the immigration statute, but the one that is bothering me at the moment is INA § 241(a)(5), reinstatement of removal.
On its face, reinstatement of a removal order against a foreign national who has reentered the US illegally makes sense. It allows ICE to quickly and efficiently reinstate an existing deportation order without the time and expense of going back to an immigration judge.
After all, who can argue against deporting someone who has already lawfully been ordered removed and, once again, offends our immigration laws by reentering illegally? Fair is fair, isn’t it?
Not so fast. What if the original deportation proceedings were so unfair that the foreign national was denied due process? What if the immigration judge, the Board of Immigration Appeals and, for its part, the Department of Homeland Security collectively denied the foreign national his or her right to a fundamentally fair removal hearing? For example, suppose the foreign national is a long term legal permanent resident but was never advised by the immigration judge of this right to be represented by an attorney at his deportation hearing and his right to ask the immigration judge for a discretionary waiver so he could remain in the U.S. with his family? Or suppose the BIA never bothered to serve him with a copy of its decision so that he could petition the court of appeals for appellate review? Unfortunately such violations happen more often than you might think.
The answer is relatively simple in the federal criminal context because the law limits the government’s ability to prosecute someone for reentry after deportation where the removal proceedings were fundamentally unfair. The criminal trial judge can throw out the indictment or, if the errors are obvious, the U.S. attorney can dismiss the charges.
But terminating the federal prosecution because the underlying removal proceedings were flawed doesn’t prevent ICE from again removing the foreign national based on the same unjust removal order. Once the criminal case is dismissed the foreign national, who has already once been removed unfairly, is again subject to immediate removal under INA §241(a)(5), the reinstatement provision, which operates independently of the criminal indictment.
To be sure, the law does provide for judicial review of a reinstatement order. But in the lion share of the cases it is a hollow remedy. First, review is very limited and it is extremely difficult to collaterally attack the underlying removal order, as flawed as it might be. Second, and perhaps more importantly, ICE typically initiates the reinstatement process shortly after the foreign national is arrested and charged criminally with illegal reentry. Since the reinstatement process involves little more than ICE verifying the identity of the foreign national and completing a form, it only takes a couple of days to complete the entire reinstatement process. Once the reinstatement order is issued, the foreign national has 30 days to appeal it to the circuit court of appeals. But in most cases, the foreign national is detained by the U.S. Marshal Service awaiting trial on the criminal reentry charge. Unless he has the benefit the advice of an immigration lawyer with expertise in the reinstatement process, he will not likely understand that his opportunity to challenge the reinstatement order will be lost if a petition for review in the court of appeals is not filed within the time limit.
So, even where the criminal prosecution falls apart under the weight of an infirm removal order, the foreign national nevertheless remains subject to being once again deported based on the same unfair order.
Foreign nationals who are legally removed from the U.S. and later reenter illegally should be subject to the legal consequences of their actions. But when someone is banished from the U.S. unfairly, the civil reinstatement provision should not be used to again subject that person to removal based on fundamentally flawed removal proceedings.
Reinstatement of removal will not likely be repealed or materially changed in any comprehensive immigration reform package that emerges from Congress in the foreseeable future. And, given the other major problems plaguing our immigration system, perhaps there are more important fixes to make. Nevertheless, the reinstatement provision’s stubborn insistence on repeating the injustice of an unlawful removal stands out as a symbol of much of what is wrong with immigration law and policy in the United States.