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The receiving end of a reinstated removal, deportation or exclusion order is never a good place to be.  Ask any immigration attorney. 

Nevertheless, as a matter of law a glimmer of hope might still exist for a person who is the subject of a reinstated in absentia order.  For those readers who are unfamiliar with immigration law jargon, an in absentia order is an order issued by an Immigration Judge in the absence of the individual whom the federal government is seeking to remove, deport or exclude from the United States. 

Section 241(a)(5) of the Immigration and Nationality Act, as amended (“the Act”) is brief enough to cite in its entirety:

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.  [emphasis added]

The immediate predecessor of section 241(a)(5) of the Act is section 242(f) of the Immigration and Nationality Act of 1952 (“the 1952 Act”).

Section 242(f) of the 1952 Act narrowly targeted specific classes of aliens for reinstatement of deportation or exclusion orders, who illegally reentered the United States after deportation or exclusion.  These classes of aliens were defined under paragraphs of section 241(a) of the 1952 Act:

• (4) persons convicted for crimes involving moral turpitude;
• (5) violators of the Alien Registration Act of 1940;
• (6) alien anarchists communists and subversives;
• (7) persons seeking to engage in activities prejudicial to public interest, dangerous United States welfare, safety or security, and activities in violation of laws relating to espionage, sabotage, public disorder, and subversive to national security;
• (11) drug addicts and traffickers;
• (12) prostitutes and persons who engage in organized prostitution and commercialized vice;
• (14) persons convicted for firearms violations;
• (15) persons convicted for violating title I of the Alien Registration Act of 1940;
• (16) persons with multiple convictions for violating title I of the Alien Registration Act of 1940;
• (17) generally, persons convicted for violations of neutrality, interference with foreign commerce and espionage; and
• (18) persons convicted for importing any alien for prostitution.

Congress broadened the scope of reinstatement of previous removal orders by replacing section 242(f) of the 1952 Act with section 241(a)(5) of the Act in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) enacted on September 30, 1996.

In particular, section 241(a)(5) of the Act, unlike section 242(f) of the 1952 Act, is not limited to specific classes of illegal reentrants, but applies to all illegal reentrants who illegally reenter the United States after a final removal order is enforced.  It seems reasonable to project, therefore, that more aliens who become subject to a reinstated removal order might be eligible to file relief applications if they can avoid the bar to relief imposed by section 241(a)(5) of the Act.

Prior to the September 30, 1996 enactment of IIRIRA, a reinstated deportation order under section 242(f) of the 1952 Act could be challenged by collaterally attacking the original deportation order under a “gross miscarriage of justice” standard.  Enforcement of a deportation or exclusion order constituted a gross miscarriage of justice only if the order clearly could not have withstood judicial scrutiny under the law in effect at the time of issuance or execution.

The Board of Immigration Appeals (“BIA”) published the following cases addressing the gross miscarriage of justice standard relating to application of section 242(f) of the 1952 Act:

• Matter of Malone, 11 I&N Dec. 730, at 731-32 (BIA 1966) (Collateral attack on a deportation order warranted when the finding of deportability was not in accord with the law as interpreted at that time and  resulted in a gross miscarriage of justice).
• Matter of Farinas, 12 I&N Dec. 467, at 471-72 (BIA 1967) (A gross miscarriage of justice occurred where an alien was ordered deported and the decision could not have withstood judicial attack under the interpretation of prevailing law.).
• Matter of Roman, 19 I&N Dec. 855, at 856-57 (BIA 1988) (An alien may collaterally attack a final order of exclusion or deportation in a subsequent deportation proceeding only upon showing that the prior order resulted in a gross miscarriage of justice.).

The BIA, in In re G-N-C-, 22 I&N Dec. 281 (BIA 1988), in the context of a controversy involving termination of deportation proceedings, cited Matter of Roman, supra, and noted that “an alien may collaterally attack a final order of exclusion or deportation in a subsequent proceeding only upon showing that the prior order resulted in a gross miscarriage of justice.”  In addition, the BIA held that the Immigration Judge and the BIA lack jurisdiction to review a decision of the Immigration and Naturalization Service ("INS") to reinstate a prior order of removal pursuant to section 241(a)(5) of the Act.  See In re G-N-C-, headnote 3.

So is it possible to avoid the need to establish a gross miscarriage of justice in a collateral attack on a reinstated in absentia removal order by filing a motion to reopen?

The answer appears to be "yes" if the basis of the motion to reopen is lack of notice.

An alien who illegally reenters the United States after being removed forfeits the right to file a motion to reopen relating to a reinstated removal order, according to section 241(a)(5) of the Act.  Rodriguez-Saragosa v. Sessions, 904 F.3d 349, at 354 (5th Cir. 2018).

However, the Fifth Circuit Court of Appeal, citing the Ninth Circuit Court of Appeal’s decision in Miller v. Sessions, 889 F.3d 998, at 1002–03 (9th Cir. 2018), reasoned that although the Petitioner knew of his prior removal order, the in absentia removal order he challenged through his motion to reopen nonetheless implicated due process and legal questions, because he contended that the prior order is invalid for lack of notice.  The Fifth Circuit Court of Appeal then concluded that under section 242(a)(2)(D) of the Act, it had jurisdiction to review the BIA’s denial of the Petitioner’s motion to reopen based on lack of notice.  Mejia v. Whitaker, 913 F.3d 482, at 487-88 (5th Cir. 2019).

Section 242(a)(2)(D) of the Act provides that:

Nothing  . . . in any other provision of the Act . . . which limits or eliminates judicial review shall be construed as precluding review of . . . questions of law raised upon a petition for review filed in an appropriate court of appeals in accordance with this section.

Furthermore, the Fifth Circuit Court of Appeal declared that the Petitioner was “not required to show a gross miscarriage of justice to invoke jurisdiction.” Mejia v. Whitaker, at 488.

As discussed in my October 4, 2021 post, entitled Defective NTA is Insufficient Written Notice for the Purpose of Rescinding In Absentia Orders, the Fifth Circuit Court of Appeal, based on Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), recently determined, in accordance with section 240(b)(5)(C)(ii) of the Act, that an in absentia removal order may be rescinded upon a motion to reopen filed at any time if the subject of such order demonstrates receipt of a defective notice to appear (“NTA”) that does not contain the time and place of the initial hearing in accordance with section 239(a)(1)(G)(i) of the Act.  Marcelo Eugenio Rodriguez, aka Marcelo Rodriguez Andueza v. Garland, (5th Cir. 2021) No. 20-60008.

It seems reasonable to conclude that a successful argument can be made in support of reopening a reinstated in absentia removal order based solely on a defective NTA by relying on the recent United States Supreme Court Niz-Chavez v. Garland decision along with Rodriguez-Saragosa v. Sessions; Marcelo Eugenio Rodriguez, aka Marcelo Rodriguez Andueza v. Garland; and Mejia v. Whitaker, in spite of the prohibition of motions to reopen reinstated removal orders under section 241(a)(5) of the Act.

However, don’t try this approach in reliance on an order to show cause (“OSC”) solely because it lacks the time and date of the initial hearing to reopen an in absentia deportation order. 

The notice requirement that NTAs must contain the time and place of the initial immigration court hearing to serve as sufficient notice, regardless of proper subsequent notice, established by Pereira v. Sessions, 138 S. Ct. 2105 (2018) and Niz-Chavez v. Garland, does not apply to an OSC governed by former section 242B of the Act of 1952.  Shahid Ashan Maradia, aka Shahid Maredia, aka Saiycdali Momin, (5^th Cir. November 17, 2021) No. 20-60714.

Nevertheless, verify that the person who is subject to an in absentia order, regardless of whether immigration proceedings were initiated by an NTA, an OSC or a “Notice to Applicant For Admission Detained for Hearing Before Immigration Judge” (Form I-122, used to initiate exclusion proceedings under the Act of 1952), has informed the government in writing about the address at which that person can be contacted with respect to such proceedings. 

Defective notice can still be established for persons who are subject to deportation and exclusion proceedings, even though the time and place of the initial hearing is not required by governing law to appear in the original charging document.  Deficient notice might be attributable to the former INS, the DHS or the immigration court for other reasons.  For example, the immigration court might have failed to use the last address provided by the respondent or applicant in immigration court proceedings to mail the hearing notice.

The respondent in removal proceedings who fails to provide an address at which that person may be contacted respecting removal proceedings, as required under section 239)a)(1)(F) of the Act, forfeits right to notice under section 240(b)(5)(B) of the Act and may not seek to reopen and rescind any in absentia removal order.

The governing case law under Pereira v. Sessions, 138 S. Ct. 2105 (2018) and Niz-Chavez v. Garland, as well as Manoel Jose Spagnol-Bastos v. Garland, (5th Cir. December 3, 2021) No. 20-60139, that require an NTA to indicate the time and place of the initial removal hearing to constitute proper notice will not protect an individual who forfeits notice by failing to provide a valid address that can be used for contact with regard to hearing schedules.  Manoel Jose Spagnol-Bastos v. Garland, (5th Cir. December 3, 2021) No. 20-60139.

In short, demonstration of insufficient notice seems to be one way of avoiding the bar to motions to reopen under section 241(a)(5) of the Act relating to reinstated removal, deportation and exclusion orders without satisfying the high standard of "gross miscarriage of justice," as long as the government has been kept informed in writing of the most recent address for contact relating to hearing notice.  The key statutory authority for this strategy is section 242(a)(2)(D) of the Act.