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Reinstatement of removal

Reinstatement of Removal is the process that the Department of Homeland Security, either CBP or ICE, uses to remove people from the U.S. who have been deported or removed in the past, or who left the U.S. on their own initiative while under an order of deportation or removal, and have reentered the U.S. without permission. Find it in the Immigration & Nationality Act at Section 241(a)(5).

DHS will give a Form I-871 “Notice of Intent to Reinstate Prior Order,” to a person who is in Restatement of Removal proceedings.

In Reinstatement of Removal, ICE has the power to remove you from the country based on your previous order of deportation or removal. You do not have a right to a lawyer, and you will not be able to speak with an Immigration Judge — unless you make it to an interview with an asylum officer and convince that person that you have a reasonable fear of persecution in your home country and that the persecution is based on race, religion, nationality, membership in a particular social group, or political opinion OR that you have a reasonable fear of torture. “Torture” for this purpose means torture by government officials or with the acquiescence of government officials. If you demonstrate your reasonable fear of torture, the reason (or lack of reason) that the government wants to torture you (or will allow others to torture you) doesn’t matter at all.

The Immigration & Nationality Act gives DHS the right to detain a person who is in Reinstatement of Removal (also called “withholding-only”) proceedings. Although it calls this detention, “mandatory,” DHS can always release a person from detention on parole if it finds such release to be in the public interest. Most immigration judges, including the judges in San Antonio, believe that they do not have the authority to release a person who is in reinstatement/withholding-only proceedings, even if the person has been detained for six months or more, and even if the release of an adult is the only way to release her child from detention.

People who are in restatement proceedings are generally not eligible for asylum, but may apply for withholding of removal or deferral of removal under the Convention Against Torture, once they have “passed” a “reasonable fear” interview with an asylum officer.

Practice Advisory on Reinstatement of Removal from Trina Realmuto for the National Immigration Project of the National Lawyers Guild and the American Immigration Council, April 29, 2013

Expedited Removal
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