Re-Entry After Removal: Consequences And Solutions
02 June 2020Author: New York Immigration Lawyer Alena Shautsova
A person with a removal order issued by the Immigration Judge or an expedited removal order faces extra challenges when he/she executes that order (departs the United States) and reenters the United States. A familiar scenario would be when one attempts to enter the United States but is turned down at the border and placed in expedited removal proceedings. Expedited removal proceedings at the border mean swift physical removal out of the US. Or, consider a scenario where one was subject to mandatory detention during the removal proceedings and upon order of removal issued by the Immigration Judge, was physically removed out of the US under the supervision of the US government. Or, a person acquired such an order as a result of an agreement with the government, or because of some other administrative order of removal. Now, the person re-enters without authorization.
A non-citizen who was removed and physically re-enters the US is subject to criminal penalties under 8 USC Section 1326 in addition to certain Immigration consequences such as facing possible reinstatement of removal which will limit a person’s relief options in Immigration court; longer inadmissibility periods in case of one’s subsequent removal, and of course, unavailability of USCIS-related adjustment of status. The criminal penalties may be very hefty: fine, two years of prison, or much more for recidivist violations. However, as in any criminal charge case, here, an individual may have some defenses available to him or her.
First, a statute of limitations for the offense limits the time during which the government may bring successful charges against the person. There is a five-year statute of limitations that starts running form the time an individual files an application with DHS or otherwise puts DHS on notice that he/she is in the US. In other words, if one informed the government that he/she is in the US, and the government did not act on this for five years, then the person shall not be convicted of this offense.
Second, when a person had an authorization to come to the US, then, of course, the “crime” did not occur: for example, a person was “waived in”: de-facto admitted into the US. Such an entry may serve as a “legal” entry when a person can demonstrate that he/she did not conceal his/her status at the time of the entry but the CBP officer allowed the person to come into the US anyway.
Third, a very popular defense in such cases is coercion and duress argument: is when the entrant argues that he/she had no choice but to return to the US, usually due to dangerous and life-threatening events in the country of origin.
The fourth and final possible solution would be to eliminate the previous order of removal: for example, if a person had an administrative order of removal and now is granted a U visa, grant of a U visa eliminates the administrative order of removal automatically. Further, for Immigration purposes: applicants for relief under Haitian Refugee and Immigrant Fairness Act (HRIFA) are not subject to reinstatement of removal; so as applicants for adjustment under section 202 of the Nicaraguan Adjustment and Central American Relief Act (NACARA); persons filing for adjustment of status based on 1986 legalization program. Note for Immigration purposes, even though the reinstatement statute was enacted in April of 1997, a person who re-entered unlawfully after deportation prior to April 1, 1997, is subject to reinstatement. See Fernandez -Vargas v. Gonzales, 548 US 30 (2006).
The “hard way” would be trying to re-open the underlying order of removal. I called it the “hard way” because in case the government will try to reinstate the order of removal, there is a rule that the underlying order of removal is not subject to review. However, as with any rule, there are some very, very limited exceptions. See U.S. v. Mendoza-Lopez, 481 U.S. 828 (1987): “ Due process requires that a collateral challenge to the use of a deportation proceeding as an element of a criminal offense be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review. Pp. 481 U. S. 837-842.” However, a person had to comply with certain legal steps: exhaust administrative remedies before the EOIR; demonstrate that he/she was denied judicial review in the proceedings (for example, his/her evidence were erroneously rejected; a person was not allowed to present his/her case for relief, etc.) and that his/her deportation hearing was fundamentally unfair, and violated due process.
A good example of such cases (that may qualify for a collateral attack) would be cases where a person did not receive a notice of the proceedings: it was mailed to a wrong address, for example; mailed to an attorney who never informed the person of the hearing… Or where the respondent’s asylum claim was pretermitted. Note, as there is a time limitation for the motions to reopen in Immigration court: usually, 90 days from the order; but then this time may be said to stop if there is ineffective assistance of counsel or some other exceptional circumstances. There is no time limit to reopen the absentia order of removal in case a person had no notice of the hearing. It is possible to reopen an asylum case based on changed country conditions at any time as well, and there is no limit on such motions. Finally, there are sua sponte motions to reopen that are not subject to time limitations or numbers. Otherwise, a person usually may file only one motion to reopen.
Nunc pro tunc I 212 application for permission to reenter
At some point in time, the Ninth Circuit court of Appeals ruled that if a person who re-entered files an I 212- application for permission to re-enter after such entry (usually when the person is already in another proceeding), and if such an application is granted, the person’s re-entry will not be considered unlawful and he/she will not be subject to various such consensus. But later, the court changed its opinion on the question and as of the date of this article, nunc pro tunc I 212 applications are not feasible apart form very few situations. The Board of Immigration Appeals (BIA) has held that nunc pro tunc permission to reapply for admission is available in limited circumstances where a grant of such relief would effect a complete disposition of the case, such as where the only ground of inadmissibility would thereby be eliminated. See Matter of Garcia-Linares, 21 I&N Dec. 254 (BIA 1996); Matter of Roman, 19 I&N Dec. 855, 857 (BIA 1988); Matter of Ducret, 15 I&N Dec. 620 (BIA 1976). See also Matter of Torres-Garcia, 23 I. & N. Dec. 866, 873 (BIA 2006).
Significantly, under INA § 245(h)(1), a juvenile who has been granted Special Immigrant Juvenile Status is “deemed, for purposes of subsection (a), to have been paroled into the United States…”. This provision can be used in cases where there is issue of “lawful” entry and removability.
If you need help with orders of removal, adjustment of status questions related to re-entry, please book a confidential consultation with NYC Immigration lawyer by calling 917-885-2261.