“Reinstatement of removal” is a summary removal procedure pursuant to § 241(a)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1231(a)(5), 8 C.F.R. § 241.8. With limited statutory and judicial exceptions, the reinstatement statute applies to noncitizens who return to the United States without authorization after having been removed under a prior order of deportation, exclusion, or removal. Reinstatement orders can be issued anywhere in the United States and can be issued against noncitizens who have been living in the country for many years. Their summary nature has led to unjust deportations of individuals fleeing persecution, longtime U.S. residents, and others with claims or even existing rights to be in the United States.
This practice advisory provides an overview of the reinstatement statute and implementing regulations, including how the Department of Homeland Security (DHS) issues and executes reinstatement orders.
The advisory addresses:
- Who is covered by INA § 241(a)(5);
- Where and how to obtain judicial and administrative review of reinstatement orders;
- Potential arguments to challenge reinstatement orders; and
- Detention during reinstatement proceedings.
Additionally, the advisory includes:
- A list of published circuit court reinstatement decisions;
- A sample letter requesting a copy of the reinstatement order and accompanying paperwork;
- A sample reinstatement order; and
- A memorandum listing the documents that DHS believes belong in the federal court record.
