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Consequences of Reentry After a Prior Final Order of Removal (Deportation)

April 25, 2019
Jeffrey Cohn

There are serious consequences for foreign nationals reentering or attempting to reenter the U.S. after receiving a prior final order of removal (deportation).  The consequences include ineligibility for immigration benefits and the risk of criminal prosecution for immigration violations.

Removal orders are based on specific grounds of inadmissibility, which can make a foreign national ineligible for certain immigration benefits. These grounds of inadmissibility include reentry or attempted reentry without inspection following an aggregate of more than one year of unlawful presence, or after a prior final order of removal (deportation).

Consequences of returning to the U.S. after removal for inadmissibility

  • – A foreign national who has been ordered removed through expedited removal or as inadmissible in removal proceedings after April 1, 1997, and who seeks admission within five years (or 20 years if it is the second or subsequent removal, or at any time if convicted of an aggravated felony), is inadmissible, unless the Attorney General has consented to the foreign national’s reapplying for admission. In addition to removal proceedings after April 1, 1997, this five-year bar applies to the streamlined expedited removal process, in which certain foreign nationals deemed inadmissible (near the U.S. border or designated ports of entry) by an immigration officer of Customs and Border Protection (“CBP” – an agency of the Department of Homeland Security – “DHS”) may be removed from the U.S. without further administrative hearings or review.
  • – A foreign national who has been ordered removed after a removal hearing from the U.S. or who departed while an order of removal was outstanding, and who seeks admission within 10 years (or within 20 years if it is after a second or subsequent removal, or at any time if convicted of an aggravated felony) from the date of such physical deportation is inadmissible, unless the Attorney General has consented to the foreign national’s reapplying for admission. The ten-year bar applies to removal proceedings in the U.S. where an immigration judge issued a final order of removal (deportation). This ten-year bar is often referred to as the “permanent bar,” since this provision of the immigration laws permanently bars (with no waiver available for 10 years) a foreign national who enters without being admitted or attempts to enter without being admitted after being ordered removed. For purposes of the ten-year or “permanent bar” for conviction of an aggravated felony it does not matter if the foreign national was convicted in the U.S. or in another country.
  • In the above examples, an individual barred from admission after a prior final order of removal (deportation) may apply for readmission prior to the period of inadmissibility by seeking a waiver. However, a waiver is not available to waive the five years of inadmissibility for a prior final order of removal (deportation) for a foreign national who has been removed due to inadmissibility because of an in absentia order (a final administrative removal order issued by an immigration judge during a hearing at which the respondent is not present).

Attempting to reenter the U.S. without being admitted

A foreign national ordered removed from the U.S. who then enters or seeks to enter without being admitted is subject to a “permanent bar,” (with no waiver available for 10 years). Once outside the U.S. for 10 years, the foreign national may apply for a waiver permitting him or her to reenter the U.S.  The individual must apply for the waiver from outside the U.S.

Reinstatement of removal for foreign nationals previously removed who have unlawfully reentered the U.S.

Reinstatement of removal is a summary removal procedure that applies to foreign nationals who return to the U.S. without being admitted after having been removed under a prior final order of removal (deportation). In such cases, the DHS can reinstate the final prior order of removal (deportation), regardless of a foreign national’s eligibility for new relief.  If the prior final order of removal (deportation) is reinstated after you unlawfully reenter the U.S., an Immigration and Customs Enforcement (“ICE”) officer can arrest you and enter a removal order, and there is no right to a hearing before an immigration judge under DHS regulations.

Potential criminal liability 

Reentry after a prior final order of removal (deportation) also puts foreign nationals at risk for criminal prosecution for immigration violations. For this to occur, the foreign national must have been subject to a prior final removal order (deportation), departed the U.S., and sought to reenter the U.S. without authorization.  The government must prove the foreign national specifically intended to reenter the U.S. without consent and took a substantial step towards the illegal reentry.

Any foreign national convicted for an unlawful reentry after a prior final order of removal (deportation) is subject to a $1,000 fine, imprisonment in federal prison for not more than two years, or both. In addition to these criminal penalties, a foreign national convicted for an unlawful reentry after a prior final order of removal (deportation) is subject to reinstatement of the prior final order of removal (deportation) upon completion of their criminal sentence.

What to do if you have a prior final order of removal (deportation)

There may be a basis to reopen a foreign national’s case so he or she can file an application for asylum, where the foreign national fears persecution in their home country due to a deterioration in country conditions or a change in personal circumstances. In cases where the foreign national should not have been deported, attorneys can challenge the execution or reinstatement of the prior final order of removal (deportation) by arguing that there was legal error in the prior order.  Additionally, foreign nationals can apply for more time to remain in the U.S. based on humanitarian circumstances.  For an in-depth discussion of what you should do if you have a prior final order of removal (deportation), please see https://www.mmhpc.com/what-to-do-if-you-have-a-prior-final-order-of-removal-deportation/.

Contact an attorney at Minsky, McCormick & Hallagan, P.C. if you need assistance in dealing with the consequences of reentry after a prior final order of removal (deportation), including evaluating your options and the potential preparation of a waiver.

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