In oral argument today before the Fifth Circuit Court of Appeals, DMCA attorney Juan Carlos Rodriguez argued that Immigration and Customs Enforcement (ICE) wrongly entered an order reinstating a prior order of removal against his client. ICE is only supposed to reinstate a prior order of removal when they are confronted with a person who was (1) previously removed and who (2) subsequently illegally re-entered the country. These reinstatement proceedings almost always involve a short proceeding between the immigrant and an ICE officer. The immigrant rarely fully understands the proceeding and is almost never allowed the right to speak to an attorney. Not surprisingly, the reinstatement proceeding sometimes results in a wrongful deportation.
DMCA attorneys regularly challenge ICE’s decision to reinstate a removal order. The challenge can be made directly to ICE or, as in the case argued today, by filing a petition for review to the Circuit Court. Recent challenges have involved situations where ICE is attempting to reinstate a removal order against an immigrant who reentered the country legally. Also, if the initial removal order violated due process of law, it should be challenged because to reinstate the order might result in a gross miscarriage of justice. Finally, if a person in a reinstatement proceeding will be persecuted in their home country, they have a right to a reasonable fear interview to determine whether they should be returned or not. If an immigrant demonstrates a reasonable fear, their case will be forwarded to an immigration court for further consideration.
Although a reinstatement proceedings include very little protections for immigrants, DMCA has successfully navigated clients through them in the past. A successful case involves early legal intervention and creative lawyering. Even short delays by the lawyer can result in an immigrant’s removal and there are strict deadlines for filing appeals. Attorneys need to carefully review both the underlying order of removal for a violation of due process and the reinstatement order itself to ensure that ICE follows its own regulations and procedures. The stakes are high; the time is short–having the right law firm on your side is key.