Locking the Revolving Door

Davis-Oliver puts teeth into reinstatements, but more could be done

Davis-Oliver puts teeth into reinstatements, but more could be done

The House Judiciary Committee has returned this week to mark-up the "Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act" (Davis-Oliver) (H.R. 2431), which was introduced by Rep. Raul Labrador of Idaho. (The committee approved the bill today by a vote of 19-13.) Earlier, I discussed how Title V of the bill will provide ICE officers and agents with the needed body armor and weapons that they need to do their jobs, particularly given the restrictions placed on them by sanctuary jurisdictions that endanger their lives and the public at large.

A separate section of that bill, section 604, will prevent aliens who are subject to expedited removal from obtaining review of those decisions by reentering illegally.

Under section 241(a)(5) of the Immigration and Nationality Act (INA):

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 of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall be removed under the prior order at any time after the reentry.

By regulation, if an immigration officer encounters an alien whom the officer believes reentered illegally, the immigration officer must determine (1) whether the alien has a prior order of removal; (2) whether the alien is the same alien who was previously removed (including, if there is a dispute, by fingerprint analysis); and (3) whether the alien reentered illegally. If the officer determines that an alien should be removed for reentering illegally, the officer will give the alien written notification of this fact, and allow the alien to make a written or oral statement contesting the determination. If the alien expresses a fear of return, the immigration officer will refer the alien to an asylum officer for a non-adversarial "reasonable fear" interview under 8 C.F.R. § 1208.31.

According to that regulation, an alien has a reasonable fear "if the alien establishes a reasonable possibility that he or she would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that he or she would be tortured in the country of removal." If the alien is found to have a reasonable fear, the alien will be referred to the immigration court to allow the alien to apply for withholding of removal under section 241(b)(3) of the INA, and protection under the Convention Against Torture.

If the asylum officer finds that the alien does not have a "reasonable fear", however, the alien can seek review of that determination before the immigration court. If the immigration judge (IJ) agrees that the alien does not have a reasonable fear of persecution or torture, the IJ must return the case to DHS for removal of the alien. Under 8 C.F.R. § 1208.31, there is no appeal from that decision.

As I detailed in my post "SCOTUS Leaves in Place Lower Court Ruling Limiting Rights of Illegal Entrants", aliens in expedited removal proceedings under section 235(b)(1) of the INA have extremely limited appeal rights in accordance with sections 242(a)(2)(A) and 242(e) of the INA. Thus, for example, if an alien in expedited removal proceeding claims to have a "credible fear" of return, but is unable to convince an asylum officer or IJ to find such fear, the alien is generally unable to have that decision reviewed by the federal circuit court.

An alien could, however, potentially seek to attack that decision by reentering the United States immediately after an expedited removal and seeking review under section 242(a)(2)(D) of the INA, for example by claiming that there were irregularities in the original expedited order.

Unlike the limited judicial review under sections 242(a)(2)(A) and 242(e) of the INA, section 242(a)(2)(D) of the INA provides for judicial review of "constitutional claims" and "questions of law".

Section 604 of Davis-Oliver makes clear that section 242(a)(2)(D) of the INA does not provide a vehicle for seeking judicial review of a reinstated expedited removal determination by amending the reinstatement provision, section 241(a)(5) of the INA, to read as follows:

REINSTATEMENT OF REMOVAL ORDERS.

(a) IN GENERAL.— Section 241(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1231(a)(5)) is amended to read as follows:

"(5) REINSTATEMENT OF REMOVAL ORDERS AGAINST ALIENS ILLEGALLY REENTERING. —If the Secretary of Homeland Security finds that an alien has entered the United States illegally after having been removed, deported, or excluded or having departed voluntarily, under an order of removal, deportation, or exclusion, regardless of the date of the original order or the date of the illegal entry—

''(A) the order of removal, deportation, or exclusion is reinstated from its original date and is not subject to being reopened or reviewed notwithstanding section 242(a)(2)(D);

''(B) the alien is not eligible and may not apply for any relief under this Act, regardless of the date that an application or request for such relief may have been filed or made; and

''(C) the alien shall be removed under the order of removal, deportation, or exclusion at any time after the illegal entry. Reinstatement under this paragraph shall not require proceedings under section 240 or other proceedings before an immigration judge.''.

(b) JUDICIAL REVIEW.— Section 242 of the Immigration and Nationality Act (8 U.S.C. 1252) is amended by adding at the end the following:

''(h) JUDICIAL REVIEW OF REINSTATEMENT UNDER SECTION 241(a)(5).—

''(1) REVIEW OF REINSTATEMENT.—Judicial review of determinations under section 241(a)(5) is available in an action under subsection (a).

''(2) NO REVIEW OF ORIGINAL ORDER.—Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, any other habeas corpus provision, or sections 1361 and 1651 of such title, no court shall have jurisdiction to review any cause or claim, arising from, or relating to, any challenge to the original order.''. (Emphasis added.)

This legislation will prevent subsequent attacks in federal court on underlying expedited removal determinations by aliens who reenter after expedited removal.

Congress could go one step further, however, by limiting judicial review of reasonable fear determinations in the same way that it has limited judicial review of credible fear determinations in sections 242(a)(2)(A) and 242(e) of the INA.

In a recent decision, the Court of Appeals for the Ninth Circuit held that these provisions did not prevent it from reviewing a negative "reasonable fear" determination in a case involving an alien who had been issued an expedited removal, reentered the United States "[s]oon thereafter", and was found 14 years later and placed into reinstatement proceedings.

The alien there claimed reasonable fear, but both the asylum officer and the IJ concluded that the fear related to "extortion", not persecution or torture that would have entitled her to apply for withholding of removal. She filed a motion with the IJ to reopen and reconsider that decision, which the IJ denied, and appealed that denial to the Board of Immigration Appeals (BIA). The BIA subsequently dismissed that appeal, stating that "no appeal lies from an Immigration Judge's decision reviewing a negative Reasonable Fear Determination."

The Ninth Circuit held that, notwithstanding any limitations on its ability to review the underlying expedited removal order, it had jurisdiction to review the reinstatement of that order because petitioner did:

[N]ot seek to collaterally attack her underlying expedited removal order. Instead, [she] was challenging the accuracy of the outcome of her reasonable fear determination during her reinstatement proceedings (rather than during her original underlying expedited removal proceedings).

The court concluded, therefore, that it had "jurisdiction to review the accuracy of the ... reasonable fear determination arising from" the reinstatement proceedings. It found that the IJ had "abused his discretion" in failing to grant petitioner's motion to reopen and reconsider, because (it held) the IJ had erred in affirming the asylum officer's negative reasonable fear determination.

Under this precedent, an alien who is apprehended entering the United States illegally who unsuccessfully claims credible fear cannot seek circuit court review of that decision, but can immediately reenter the United States, and if apprehended, make the same unsuccessful claim before the asylum officer and IJ, and seek circuit court review of that latter decision. Given the limitations on judicial review of expedited removal decisions, that is plainly not an outcome that Congress intended.

It is likely that Congress has not addressed this loophole because, unlike the "credible fear" process under section 235(b) of the INA, the "reasonable fear" process before the IJ is purely regulatory. Section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 required the heads of agencies of jurisdiction to prescribe regulations for implementing United States obligations under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention Against Torture or Convention). As the Department of Justice explained in implementing the reasonable fear regulation, that rule created "a new screening process to rapidly identify and assess both claims for withholding of removal under section 241(b)(3) of the Act and for protection under the Convention by ... aliens subject to ... reinstatement of a previous order of removal under section 241(a)(5) of the Act," a process that was "[m]odeled on the credible fear screening mechanism."

This regulation, which provided review of a negative reasonable fear determination by an IJ, replaced a prior regulation that had been promulgated just two years earlier to implement section 241(a)(5), which was added to the INA by section 305 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). That prior regulation, 8 C.F.R. § 241.8(d) (1997), did not provide for IJ review. It stated:

Exception for withholding of removal. If an alien whose prior order of removal has been reinstated under this section expresses a fear of returning to the country designated in that order, the alien shall be immediately referred to an asylum officer to determine whether the alien's removal to that country must be withheld under section 241(b)(3) of the Act. The alien's claim will be granted or denied by an asylum officer in accordance with §208.16 of this chapter. If the alien has previously had a claim to withholding of deportation or removal denied, then that decision shall prevail unless the alien can establish the existence of changed circumstances that materially affect the alien's eligibility for withholding. The alien's case shall not be referred to an immigration judge, and there is no appeal from the decision of the asylum officer. If the alien is found to merit withholding of removal, the Service shall not enforce the reinstated order. (Emphasis added.)

Nothing in the regulatory history of 8 C.F.R. § 1208.31 (or its partner and predecessor regulation, 8 C.F.R. § 208.31) indicates that this amendment was necessary because review of an asylum officer's negative reasonable fear determination by an IJ was required by law; rather, it appears that then-Attorney General Janet Reno simply provided such review in the exercise of her discretion.

Because it was "modeled on the credible fear screening mechanism", Congress may have assumed that the same limited judicial review that applied to credible fear determinations would apply to reasonable fear findings. The Ninth Circuit has made clear, however, that this is not the case.

To close this loophole, Congress should codify the reasonable fear regulation, and amend section 242 of the INA to make it clear that the same judicial review limitations that apply to expedited removal proceedings apply to reinstatement proceedings under section 241(a)(5) of the INA in cases that involve the reinstatement of expedited removal orders.