These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
reinstatement
The Ninth Circuit has determined that the statutory bar to reopening or reconsidering a reinstated removal is non-jurisdictional, and therefore, the Board of Immigration Appeals may exercise its jurisdiction to reopen a reinstated removal order.
The full text of Suate-Orellana v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/05/07/19-72446.pdf
The Seventh Circuit has determined that a reinstatement order is final for judicial review at the completion of withholding only proceedings.
The full text of FJAP v. Garland can be found here:
The Fourth Circuit has determined that it has no jurisdiction over a petition for review challenging the denial of withholding of removal and protection under the Convention against Torture filed by a non-citizen subject to a reinstated removal order. The court assumed, without deciding, that a reinstatement order is a final order for jurisdictional purposes, but found that the petition for review as filed more than 30 days after the issuance of the reinstatement order.
The full text of Martinez v. Garland can be found here:
The Sixth Circuit has reaffirmed that an individual subject to a reinstated removal order files a timely petition for review if it is filed within 30 days of the agency’s dismissal of his withholding of removal and protection under the Convention Against Torture claims.
The full text of Kolov v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0186p-06.pdf
The Tenth Circuit has reaffirmed that a petition for review (PFR) challenging a reinstatement order is timely if it is filed within 30 days of the Board of Immigration Appeals’ decision at the end of the ensuing withholding/CAT only proceeding. The PFR need be filed within 30 days of ICE’s issuance of the reinstatement order.
The full text of Arostegui-Maldonado v. Garland can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110897188.pdf
The Fifth Circuit has determined that a reinstatement order is a final order of removal, and therefore, a petition for review must be filed within 30 days of the issuance of that order. The existence of an ongoing withholding/CAT only proceedings does not toll the deadline for filing that petition for review.
The full text of Argueta-Hernandez v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/22/22-60307-CV0.pdf
The Tenth Circuit has determined that the reinstatement provision at 8 USC 1231(a)(5) prevents reconsideration of a removal order. The court also found that a prior reinstatement of the order is sufficient to trigger this bar, even if the order has not been again reinstated since the petitioner’s most recent illegal entry.
The full text of Zapata-Chacon v. Garland can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110758299.pdf
The Fifth Circuit has determined that a petitioner who is subject to a reinstated removal order is not eligible for VAWA cancellation of removal. The panel also suggested that there may not be jurisdiction to review the reinstatement order.
“Nasrallah and Johnson may mean that a petitioner who wishes to challenge a reinstatement order in federal court must file within 30 days of the reinstatement order—without waiting for withholding-only proceedings to conclude. That’s what the Second Circuit recently held in Bhaktibhai-Patel v. Garland, 32 F.4th 180, 190–95 (2d Cir. 2022). But even that conclusion relies on the premise that a reinstatement order is a final order of removal under Section 1252. Again, we have held that it is. That conclusion, too, may require reassessment in the wake of Nasrallah and Johnson. One might think that a reinstatement order is not a final order concluding that the alien is deportable or ordering deportation because a reinstatement order presupposes a prior order of removal and because the statute does not authorize a new removal order—it reinstates one from its original date.”
Though the court did not ultimately resolve this issue, but raised it for future litigants to consider.
The full text of Ruiz Perez v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/20/20-61133-CV0.pdf
The Seventh Circuit has recognized the defects in a reinstatement order (namely, that it was signed more than 6 months before the petitioner was given an opportunity to respond to it), but denied the petition for review due to a lack of prejudice caused by the deficiencies.
The full text of Casas v. Garland can be found here:
The First Circuit has determined that the reinstatement bar prevents the agency from reopening a reinstated removal order.
The full text of Garcia Sarmiento v. Garland can be found here:
The Ninth Circuit has determined that the agency lacks any sua sponte authority to reopen a reinstated removal order, even if a petitioner is alleging a gross miscarriage of justice.
The full text of Bravo-Bravo v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/18/20-71042.pdf
An amended opinion can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/02/20-71042.pdf
The Ninth Circuit has concluded that the agency lacks jurisdiction to reopen a reinstated removal order. As such, it denied the petitioner’s appeal citing the reinstatement provision, even though the agency denied the underlying motion to reopen on due diligence grounds.
The full text of Gutierrez-Zavala v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/26/20-73398.pdf
The Ninth Circuit, sitting en banc, has determined that an inadmissible non-citizen who reenters the United States without obtaining consent from the US government is subject to reinstatement of a prior removal order, regardless of his manner of entry. In this case, the non-citizen was deported due to a drug conviction, which rendered him inadmissible at the time of his reentry through a port of entry.
“The record contains no indication that Tomczyk applied for, let alone received, a waiver of inadmissibility between his deportation in July 1990 and his reentry in July 1991, and Tomczyk does not argue otherwise. Nor does Tomczyk cite any authority suggesting that the INA permitted a border official to effectively grant such a waiver merely by allowing the vehicle in which he traveled to cross the border. Tomczyk’s qualifying conviction thus rendered him ineligible to be admitted to the United States at the time of his reentry. Because the law forbade Tomczyk from gaining admission into the United States in July 1991, we hold that his reentry was illegal under the plain meaning of § 1231(a)(5).”
The en banc decision in Tomczyk v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/14/16-72926.pdf
My blog post on the original 3-judge panel decision can be found here:
https://sabrina-damast.squarespace.com/config/pages/543afe51e4b005acd181a792
An amended en banc decision can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/11/16-72926.pdf
The Tenth Circuit has affirmed that the agency lacks authority to reopen a reinstated removal order. In this case, the petitioner was a lawful permanent resident who was ordered removed (and physically removed) due to a felony animal cruelty conviction. After his removal, a state court vacated the conviction due to ineffective assistance of counsel, and reinstated the original charges. The petitioner sought reopening of his removal order, which the Immigration Judge denied because the criminal charges were still reinstated and remained pending. The petitioner then unlawfully reentered the United States, and the Department of Homeland Security reinstated his removal order. Subsequently, he pled to misdemeanor animal cruelty, which was not a deportable offense, and filed a second motion to reopen, which the agency declined to grant because his removal order had already been reinstated. The Tenth Circuit agreed that the reinstatement barred reopening, and that the petitioner had forfeited his right to reopening by reentering illegally. Moreover, the court declined to find a “gross miscarriage of justice” exception to the bar to reopening reinstated orders, and further opined that even if such an exception existed, it would not apply to this case, because the petitioner’s conviction was vacated after he was removed. Finally, the court declined to extend nunc pro tunc relief with respect to the first motion to reopen, which was filed before the petitioner reentered the United States, finding that nunc pro tunc relief is an equitable remedy, which was barred by the petitioner’s “unclean hands.”
The full text of Tarango-Delgado v. Garland can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110613259.pdf
The Ninth Circuit has held that a vacatur of a criminal conviction after a petitioner has been physically removed from the United States does not demonstrate a gross miscarriage of justice in the underlying removal proceedings, such that he can challenge the reinstatement of a removal order premised on the vacated conviction. The gross miscarriage of justice standard looks at whether the removal order was valid at the time it was issued and at the time it was executed. Thus, any post-execution developments, such as vacatur of the conviction that formed the basis of the removal order, do not establish a gross miscarriage of justice. The court further noted that the petition was found deportable for having entered the United States without inspection, which provided a separate basis from the conviction for deporting him.
The full text of Lopez Vazquez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/12/18-70329.pdf
The Ninth Circuit has determined that an individual subject to a reinstated removal order may not seek asylum, even if there are changed circumstances since the entry of the original removal order.
The full text of Iraheta-Martinez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/07/18-72692.pdf
The Ninth Circuit has determined that a non-citizen subject to a reinstatement order has a right to counsel in a reasonable fear review with an Immigration Judge. However, that right must be taken in the context of the regulation that requires that reasonable fear reviews be conducted within ten days of the issuance of the Asylum Officer’s negative reasonable determination. Thus, the agency did not deny the petitioner his right to to counsel when he requested time to find an attorney at his hearing, which was scheduled on Day 8 of 10.
The full text of Orozco-Lopez v. Garland and Gonzalez Martinez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/25/20-70127.pdf
The Sixth Circuit has declined to reopen a removal order issued against a lawful permanent resident who subsequently vacated the conviction that served as the basis of removal. The court declined to find that a reinstated can be reopened, even if there is a showing of a gross miscarriage of justice in the underlying removal order. Moreover, because the petitioner did not vacate the conviction until after he was removed, there was no gross miscarriage of justice.
The full text of Sanchez-Gonzalez v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0161p-06.pdf
The Ninth Circuit has voted for en banc rehearing of a case involving the definition of “illegal reentry” for reinstatement purposes.
The order granting rehearing en banc in Tomczyk v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/06/16-72926.pdf
My blog post on the original decision can be found here:
http://www.sabrinadamast.com/journal/2021/2/12/ninth-circuit-clarifies-the-meaning-of-illegal-reentry-for-reinstatement-purposes
The Eighth Circuit has determined that an individual who was admitted to the United States on a visa after being removed, but who did not request permission to return to the United States prior to returning to the country, is subject to reinstatement of that removal order. The court also found that there is no miscarriage-of-justice exception to the statutory prohibition on reopening a reinstated removal order.
The full text of Gutierrez-Gutierrez v. Garland can be found here:
