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
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.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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