An alien who was removed from the U.S. cannot return within 5 years if he was removed by an immigration officer through expedited removal or within 10 years if removed by order of an Immigration Judge (IJ) after removal proceedings. If this prohibition seems harsh, ignoring it would be worse.
Under INA 241(a)(5), if an alien has re-entered the U.S. illegally after having been removed or having departed voluntarily under an order of removal, the prior removal order is reinstated from its original date. The prior removal order cannot be reopened or reviewed. The alien cannot apply for any relief. He shall be removed under the prior order at any time after re-entry.
For example, in 2005, an IJ ordered the removal of X at the end of his removal proceedings. X was promptly removed. In 2009, X applied for a B-2 visa to visit his ailing mother but the 10-year bar prevented him from getting a visa. In 2010, he entered the U.S. without inspection. In 2011, the police arrested him for driving under the influence of alcohol. X soon found himself in Immigration and Customs Enforcement (ICE) custody after the police discovered his undocumented status. It didn’t take long for ICE to find the 2005 removal order. ICE then notified X that it would reinstate the 2005 removal order. X tried to stop his removal by having his U.S. citizen (USC) wife file a petition for him which could be the basis for his green card. However, this did not stop ICE from reinstating the removal order. A week later, X was again removed. He could not appeal such order. He could not even see an IJ in order to determine his right to remain in the U.S.
Let’s look at another example. In 2005, while Y was 6 months pregnant, she tried to enter the U.S. with her B-2 visa. At the airport, a Customs and Border Patrol (CBP) officer asked Y about the purpose of her visit. She said she was visiting relatives. The CBP officer doubted her intentions and sent her to secondary inspection. Y later admitted that the true purpose of her visit was to give birth. The officer initiated expedited removal proceedings under INA 235(b)(1). The officer then found her inadmissible, revoked her B-2 visa, and returned her to the country of origin on the next available flight. In 2006, Y’s USC fiancé filed a K-1 visa for her but she did not get it because the application was within 5 years of her expedited removal. In 2007, she entered the U.S. without inspection. The following year, ICE apprehended her during an enforcement raid on her workplace. ICE then reinstated her prior expedited removal order and promptly removed her.
What if X and Y re-entered not by illegally crossing the border but after inspection by means of fake passports and fraudulently issued visas? Would that make their re-entry legal and spare them the effects of INA 241(a)(5)?
In Tamayo v. Holder, No. 08-74005, slip op., (9th Cir. June 18, 2013), the Ninth Circuit Court of Appeals ruled that an alien is subject to the reinstatement of a prior removal order if he re-entered in a procedurally regular but substantively invalid manner. Let me explain. The petitioner in that case was a lawful permanent resident (LPR). In 1989, the IJ ordered his removal. He later re-entered by presenting his old LPR card at a border crossing. The border official allowed him to enter. When petitioner was in the U.S. he tried to renew his LPR card. At this point immigration officials realized that his LPR card was no longer valid. They summoned him for an interview, where he was arrested and later removed.
Petitioner argued that the government could not reinstate his prior removal order because he re-entered legally after presenting himself for inspection. The Court conceded that there was procedural regularity in petitioner’s re-entry but held that his deceptive behavior did not make his re-entry legal. Otherwise, petitioner would be rewarded for his fraudulent behavior.
The Court, however, had come to a different conclusion in the context of admission into the U.S. Admission is the lawful entry of an alien after inspection and authorization by an immigration officer. Both the Ninth Circuit and the Board of Immigration Appeals (BIA) have held that an alien is deemed admitted into the U.S. if his admission was procedurally regular even though it was substantively invalid.
For example, if an alien presents a fraudulent visa at the port of entry and an immigration officer allows him to enter because he failed to detect the fraud, the alien is deemed admitted. This procedurally valid admission would mean that the alien could later apply for adjustment of status. However, if this same alien was previously removed, he may have been admitted but he could not adjust status because he would be subject to the reinstatement of his prior removal order. This shows how a difference in facts or legal provisions could lead to very different outcomes.
