It often seems like the deck is stacked against our clients, particularly when the government uses tools like reinstatement of removal that are complex to defend against.  Reinstatement sounds simple, but in practice the government can mistakenly apply it or fail to ensure safeguards are taken to protect asylum seekers. In one case where reinstatement was attempted, described below, the client had a prior order of deportation but he was subsequently granted legalization so reinstatement did not even apply to him.

There are many factors that can come into play:

  • The respondent may not be fluent in English and may not understand the legal arguments that can be made.
  • S/he may not be able to explain what happened at the alleged prior removal hearing.
  • The alleged prior order is often reinstated before the respondent has an opportunity to talk with an attorney.
  • Immigration and Customs Enforcement (ICE) may be taking steps to remove the respondent immediately, and it may be necessary to file a petition for review with the court of appeals and request a stay of removal on an emergency basis.
  • Counsel may have to do this with incomplete information and without having an opportunity to review the respondent’s A-file.

To say that these cases are complex and difficult is an understatement.  But, you don’t have to let the government railroad your clients – you can fight for them. You don’t need to recreate the wheel here– there are resources on aila.org and publications that can help, like the just-updated 4th edition of Litigating Immigration Cases in Federal Court, by yours truly.  Let me highlight some of the issues that can arise.

Reinstatement is permissible only if ICE can properly determine that (1) the respondent was previously ordered removed, (2) s/he was removed or departed from the United States under the order of removal, and (3) s/he reentered the U.S. unlawfully.  In addition, if the respondent expresses a fear of return to his or her home country, s/he must be referred to an asylum officer for determination of whether s/he has a “reasonable fear of persecution or torture.”  Litigation on any one of these issues may be appropriate and necessary.

In one case my client did indeed have a fear of return to his home country but was refused a “reasonable fear” interview.  He asked to talk with an attorney but ICE would not allow it, so he refused to sign the reinstatement documents. ICE then reinstated the alleged prior order and took steps to remove him from the U.S. immediately. You don’t have to let that go – in such cases, I have filed a petition for review on an emergency basis and been able to obtain a stay of removal, arguing that ICE cannot remove a person who has a fear of return without first affording the reasonable fear interview before an asylum officer as required by 8 C.F.R. §241.8(e).

I have seen several cases in which a person departed from the U.S. under a prior order of removal and then returned to the country legally with a travel document. For instance, one client was a legalization applicant who held a “red” I-688A employment authorization card (which was valid for travel authorization).  He departed under an old order of deportation, and reentered the U.S. lawfully with the I-688A. After ICE tried to enforce the prior removal order, I discovered that he had reentered the U.S. legally.  In that situation I needed to file a motion to reopen with the ICE office that had reinstated the prior order of removal.  Otherwise there would have been no evidence in the record showing that the reinstatement was improper.

In reality, ICE’s refusal to allow the respondent (or the respondent’s counsel) an opportunity to review the prior A-file before reinstatement is…problematic.  If a petition for review is filed, ICE will prepare the administrative record used for purposes of judicial review.  But ICE does not produce the entire A-file, instead ICE cherry picks the documents needed to support the reinstatement order without including information that may be beneficial to the respondent. Obviously that doesn’t help the client. That’s where a Freedom of Information Act (FOIA) request comes in: in order to obtain a copy of the prior A-file, the respondent will have to file a FOIA request.

In the first case I mention above, since the respondent was granted legalization the prior order of deportation was nullified. Deportation proceedings were commenced a second time, but those proceedings were administratively closed.  Thus, at the time ICE reinstated the alleged prior order, there was in fact no order of deportation for ICE to reinstate. The administrative record created by ICE for the court of appeals contained only the old order of deportation and evidence that the respondent had departed from the U.S.; it did not include evidence that the respondent had been legalized, and that subsequent deportation proceedings had been administratively closed.  The only way that respondent was able to defend against reinstatement was by first filing a petition for review, and then while the case was pending at the court of appeals submitting a FOIA request to obtain a complete copy of the A-file.

The administration’s use of reinstatement is creating fear and confusion among immigrant communities, but as immigration attorneys, you are the bulwark against the government’s denial of due process. Although the cases are difficult, reinstatement orders should be challenged on a more regular basis.

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Besides Litigating Immigration Cases in Federal Court, additional resources include – AILA’s Litigation Toolbox, joining the Federal Litigation Section, and taking a look at the free Fearless Litigation Series.