An alien who illegally reenters the United States after having been removed or having departed voluntarily under an order of removal, deportation or exclusion may be removed from the United States by the reinstatement of the prior order.
The determination to reinstate a prior order is within the authority of an immigration officer. The alien has no right to a hearing or to any other form of relief to challenge the reinstatement. However, in determining whether an alien is subject to reinstatement of a prior order, the immigration officer must:
- Obtain the prior order of removal, deportation or exclusion
- Determine whether the alien is in fact the alien who was previously removed or who voluntarily departed under the prior order
- Determine whether the alien unlawfully reentered the United States
In verifying the alien's identity in a disputed case, the immigration officer should compare the alien's fingerprints with those of the previously removed, deported or excluded alien. If the fingerprints cannot be compared, the officer cannot reinstate the prior order.
In determining if the alien's reentry is unlawful, the immigration officer must consider all relevant evidence and must attempt to verify any claim that the alien was lawfully admitted.
If the alien is subject to a reinstatement of an order, the immigration officer must provide the alien with written notice of the reinstatement determination and must advise the alien that he or she can make a statement contesting the determination. If the alien gives a contesting statement, the immigration officer is required to reconsider the reinstatement determination.
The immigration officer cannot reinstate prior orders for the following aliens:
- Eligible applicants seeking adjustment of status or legalization under § 245A of the Immigration and Nationality Act
- Applicants for adjustment of status under the Haitian Refugee Immigrant Fairness Act (HRIFA) or the Nicaraguan Adjustment and Central American Relief Act (NACARA)
- Aliens who express a fear of returning to the country designated in the prior order
If the application for adjustment is granted, the prior order of removal, deportation or exclusion no longer has any legal effect and is not enforceable. If the application is denied in a final decision, the immigration officer may then reinstate the prior order.
If an alien seeking asylum fails to show to an asylum officer that the fear of persecution or torture is reasonable, the prior order will be reinstated.