A fellow practitioner asked a question regarding deportation and future relief. I thought the topic was worth discussing here.

Client came to me because he had received a notice to appear (NTA). Initially, I was pleasantly surprised, base on his equities. He had been in the US since 2002, no criminal record, 4 USC children, filed taxes and requisite hardship for cancellation of removal. Then the other shoe fell – he had been deported in November, 2001 and came back within weeks (early 2002) and hasn’t left since. My initial question was why he had not been given a reinstatement of removal and an expedited removal. Instead he received an NTA in May 2016 with a court date in late May. What is happening here?

Great question – and very frustrating, I know.

The code section you are looking for is 8 CFR 241.8. Other than withholding of removal (under asylum grounds), and CAT, along with a couple of obscure South American/Central American Acts, the alien ain’t eligible for squat!

Now, technically, you have an interesting issue here. DHS lacks authority to reinstate – it has to be done by an immigration officer (i.e. ICE or CBP). Read the code section carefully. Also, said reinstatement is discretionary. If ICE/CBP opt not to apply this section, then…can they later change their mind?

The most telling indication that this section does not apply is the release of the alien on parole or bond. That is not done when reinstatement is in play, and the Court has no authority on bond issues with these folks (for obvious reasons).

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