9th Circuit Rules Reinstatement Regulations Violate The INA By Authorizing Removal Without A Hearing Before An IJ

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

9th Circuit rules reinstatement regulations violate the INA by authorizing removal without a hearing before an IJ
Immigrants' Rights Update, Vol. 18, No. 8, December 22, 2004

The U.S. Court of Appeals for the Ninth Circuit has ruled that the attorney general’s regulations authorizing immigration officers to issue reinstatement orders that result in the removal of non–U.S. citizens from the United States without a hearing conflict with statutory requirements of the Immigration and Nationality Act. The reinstatement statute—section 241(a)(5) of the Immigration and Nationality Act—provides that “if the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order is reinstated,” and may not be reopened or reviewed. The court concluded, on petition for review of a reinstated removal order, that only immigration judges have the authority to determine that a noncitizen is subject to the reinstatement of removal procedure.

The ruling is based on section 240(a) of the INA, a general provision providing authority for removal proceedings. This statute requires that immigration judges “conduct all proceedings for deciding the inadmissibility or deportability of an alien” and provides that, “Unless otherwise specified in this chapter [of the INA], a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be . . . removed from the United States.” The statute excepts the procedures for entering administrative removal orders based on criminal convictions of section 238 of the INA, and another provision of the INA specifically provides for use of the “expedited removal” procedure that results in removal without a hearing. However, the reinstatement statute—section 241(a)(5)—does not specify that reinstatement occur without a hearing before an IJ, nor does it exempt reinstatement from this requirement of section 240(a).

The procedure under which immigration officers order reinstatement without a hearing before an IJ is purely the product of regulation. 8 C.F.R. sec. 241.8. As the court noted, prior to enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the INA contained a provision for reinstatement—former INA sec. 242(f)—which allowed for reinstatement in more limited circumstances than the current sec. 241(a)(5). Neither former sec. 242(f) nor current sec. 241(a)(5) expressly addressed whether reinstatement could be ordered without an IJ hearing. The regulations implementing sec. 242(f) provided for reinstatement decisions to be within the province of IJs, but in implementing the current statute the attorney general expressly provided by regulation for removal without a hearing. The court concluded that, since the statute provides no authorization for reinstatement orders to issue without an IJ hearing, the regulations conflict with the statute.

Morales-Izquierdo v. Ashcroft, 388 F.3d 1299 (9th Cir. 2004).