Bejjani v. INS: 6th Circuit Rules Reinstatement of Removal Not Applicable Where Reentry Occurred Prior to 4/1/97

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

BEJJANI V. INS: 6TH CIRCUIT RULES REINSTATEMENT OF REMOVAL NOT APPLICABLE WHERE REENTRY OCCURRED PRIOR TO APRIL 1, 1997
Immigrants' Rights Update, Vol. 15, No. 8, Dec. 20, 2001

The U.S. Court of Appeals for the Sixth Circuit has ruled that the Immigration and Naturalization Service cannot use section 241(a)(5) of the Immigration and Nationality Act to "reinstate" the deportation orders of immigrants who were previously deported and then reentered the United States illegally, where the individual's reentry occurred prior to Apr. 1, 1997.

Section 241(a)(5) provides that where the attorney general finds that an immigrant has reentered the U.S. illegally after having left the country under an order of removal, the prior removal order is reinstated and may not be reopened or reviewed. Based on an analysis of various provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the court concluded that the reinstatement provision does not apply to reentries that occurred prior to the Apr. 1, 1997, effective date of section 241(a)(5). With this ruling, both the Sixth and Ninth Circuits now have held that the statute does not apply to pre-Apr. 1, 1997, reentries, while the Fourth Circuit has ruled to the contrary (see "9th Circuit Rules on Reinstatement of Removal," Immigrants' Rights Update , Feb. 28, 2001, p. 9).

Bejjani v. INS, __ F.3d __, No. 01-3117 (9th Cir. Nov. 14, 2001).