Reinstatement of Removal

When an individual illegally reenters the country following a prior order of removal, DHS can reinstate the prior order and thus prevent the individual from applying for relief from removal. The LAC has participated in litigation before the Supreme Court and several federal appellate courts on important questions relating to the reinstatement provision of the Immigration and Nationality Act, including the circumstances under which it may be applied retroactively. The LAC also has issued a practice advisory on this subject.

CASES | RESOURCES

CASES

Supreme Court

Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (holding the reinstatement provision may be retroactively applied to individuals who illegally reentered and made no attempt to legalize their status prior to April 1, 1997). The LAC filed an amicus brief in support of the petitioner.

Federal Circuit Courts

Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc) (upholding regulation permitting reinstatement of prior removal order by immigration officers rather than immigration judges).  The LAC filed an amicus brief in support of the petitioner.

Valdez-Sanchez v. Gonzales, 485 F.3d 1084 (10th Cir. 2007) (holding the reinstatement provision cannot be applied retroactively to individuals who applied for lawful residency prior to  April 1, 1997).  The LAC filed an amicus brief in support of the petitioner.

Lattab v. Ashcroft, 384 F.3d 8 (1st Cir. 2004) (holding the reinstatement provision may be retroactively applied to individuals who illegally reentered before April 1, 1997, and did not qualify for any relief).  The LAC filed an amicus brief in support of the petitioner.

Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004) (holding that persons who file I-212 waivers prior to a reinstatement determination are entitled to adjudication of the waiver). The LAC filed an amicus brief in opposition to the government’s request for panel rehearing.

RESOURCES

LAC Practice Advisory: Reinstatement of Removal (updated April 29, 2013). This Practice Advisory addresses how to obtain federal court review of reinstatement orders and arguments available to challenge the legality of reinstatement and underlying removal orders.