W-C-B

Cite as 

 (BIA 2007)                                 Interim Decision #3557




                           In re W-C-B-, Respondent
                              Decided March 19, 2007
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) An Immigration Judge has no authority to reinstate a prior order of deportation or
   removal pursuant to section 241(a)(5) of the Immigration and Nationality Act, 

(a)(5) (2000).
(2) An alien subject to reinstatement of a prior order of deportation or removal pursuant to
   section 241(a)(5) of the Act has no right to a hearing before an Immigration Judge.

(3) The Immigration Judge did not err in terminating removal proceedings as improvidently
   begun where the respondent was subject to reinstatement of his prior order of
   deportation.
FOR RESPONDENT: Martin Resendez Guajardo, Esquire, San Francisco, California
BEFORE: Board Panel: OSUNA, Acting Chairman; HURWITZ, Acting Vice Chairman;
        and HOLMES, Board Member.
HURWITZ, Acting Vice Chairman:

   The respondent in this case was deported from the United States following
deportation proceedings in 1992. He reentered the United States, and in 2005
removal proceedings were initiated against him. While the proceedings were
pending before the Immigration Judge, the Department of Homeland Security
(“DHS”) lodged an additional charge of removability and moved for
reinstatement of the respondent’s prior order of deportation pursuant to
section 241(a)(5) of the Immigration and Nationality Act, 

(a)(5) (2000). The DHS subsequently moved to terminate proceedings
as improvidently begun. In a decision dated June 13, 2006, the Immigration
Judge granted the motion and terminated the respondent’s removal
proceedings without prejudice. The respondent has appealed from that
decision. The appeal will be dismissed. The respondent’s motion for remand
to allow him to apply for relief from removal will be denied.
              I. FACTUAL AND PROCEDURAL HISTORY
   On February 5, 1992, the respondent was convicted in the United States
District Court, Southern District of California, of the offense of possession of
a controlled substance. An Order to Show Cause and Notice of Hearing

                                           118
Cite as 

 (BIA 2007)                        Interim Decision #3557



(Form I-221) initiated deportation proceedings and charged that the
respondent was deportable for having violated a controlled substance law. In
a decision dated July 20, 1992, the respondent was ordered deported from the
United States to Honduras. The Immigration Judge’s decision notes that the
respondent was found to be subject to deportation based on his own
admissions, that he made no application for relief, and that he waived his right
to appeal. On September 21, 1992, the respondent was deported from the
United States pursuant to the Immigration Judge’s decision.
   On May 2, 2005, a Notice to Appear (Form I-862) commenced removal
proceedings against the respondent. The Notice to Appear alleges that the
respondent entered the United States on or about October 20, 1999, without
being admitted or paroled after inspection by an immigration officer, and it
charges that he is removable pursuant to section 212(a)(6)(A)(i) of the Act,

(a)(6)(A)(i) (2000). On May 1, 2006, the DHS filed a motion
asking the Immigration Judge to reinstate the respondent’s prior deportation
order pursuant to section 241(a)(5) of the Act. The motion was accompanied
by a Form I-261 (Additional Charges of Inadmissibility/Deportability)
alleging that the respondent had previously been ordered deported from the
United States, and that he was therefore removable pursuant to section
212(a)(9)(C)(i)(II) of the Act, as an alien who had been ordered excluded and
who enters or attempts to reenter the United States without being admitted.
   At a hearing on June 13, 2006, the Immigration Judge considered the issue
of reinstating the respondent’s prior deportation order. After the Immigration
Judge expressed his opinion that he lacked the authority to grant the DHS’s
motion to reinstate the prior deportation order, the DHS moved to terminate
the respondent’s removal proceedings as improvidently begun. The
Immigration Judge decided that the DHS had met its burden of establishing
that the removal proceedings had been improvidently begun, i.e., that removal
proceedings were instituted even though a valid deportation order already
existed, and he granted the DHS’s motion to terminate proceedings.
                         II. ISSUES ON APPEAL
  The basic issue in this case is whether an Immigration Judge has the
authority to reinstate a prior deportation order. If the Immigration Judge
correctly decided that he had no authority to reinstate the prior deportation
order, we must then determine whether the respondent’s removal proceedings
were properly terminated as improvidently begun.




                                      119
Cite as 

 (BIA 2007)                                  Interim Decision #3557




                                   III. ANALYSIS
    Section 241(a)(5) of the Act provides as follows:
      Reinstatement of removal orders against aliens illegally reentering

        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.1

The language of the statute does not clearly set forth who is authorized to
reinstate the prior deportation order. However, the regulation implementing
the statute mandates that an “immigration officer shall determine” whether an
alien is subject to having his prior deportation order reinstated.2 

(a) (2006). The language of the regulation explicitly states that “[t]he
alien has no right to a hearing before an immigration judge in such
circumstances.” 

 Therefore, we conclude that the Immigration Judge
correctly decided that he had no authority to reinstate the respondent’s prior
deportation order.
   The respondent argues that the procedures established by the Attorney
General for reinstating a prior deportation order are invalid because they do
not provide the right to a hearing before an Immigration Judge, as required by
section 240(a) of the Act, 8 U.S.C. § 1229a(a) (2000). This argument was
squarely addressed and rejected by the United States Court of Appeals for the
Ninth Circuit in Morales-Izquierdo v. Gonzales, 

 (9th
Cir. 2007) (en banc), where the court concluded that the regulation permitting
reinstatement of a prior order of removal without a hearing before an
Immigration Judge is not inconsistent with section 241(a)(5) of the Act. In
reaching this conclusion, the court noted that the removal and reinstatement
provisions are in different sections of the Immigration and Nationality Act,
thereby indicating congressional intention to treat reinstatement
determinations differently from first-instance determinations of removability.

.


1
   We note that section 241(a)(5) of the Act has been recognized as encompassing
deportation and exclusion orders, as well as removal orders. Warner v. Ashcroft, 

 (6th Cir. 2004).
2
  The Act defines “immigration officer” as “any employee or class of employees of the
Service or the United States designated by the Attorney General, individually or by
regulation, to perform the functions of an immigration officer specified by this Act or any
section thereof.” Section 101(a)(18) of the Act, 

(a)(18) (2000).

                                            120
Cite as 

 (BIA 2007)                                  Interim Decision #3557



   Moreover, the court noted that section 241(a)(5) of the Act makes no
mention of a hearing before an Immigration Judge, or any other procedure.
Instead, most of the section is devoted to limiting the alien’s rights and
ensuring that removal is carried out expeditiously. Id. at 696. The court
pointed out that removal proceedings under section 240 of the Act involve a
broad inquiry where the Immigration Judge must determine (1) whether the
individual is removable from the United States and, if so, (2) whether the
individual is otherwise eligible for relief from removal. Id. at 697. Because
these determinations can be complex, the statutory scheme in place requires
a formal hearing before an Immigration Judge. In sharp contrast, the scope of
a reinstatement inquiry under section 241(a)(5) of the Act is much narrower
and can be performed like any other ministerial enforcement action.
According to the court, “The only question is whether the alien has illegally
reentered after having left the country while subject to a removal order.” Id.
Considering these factors, the court concluded that “a previously removed
alien who reenters the country illegally is not entitled to a hearing before an
immigration judge to determine whether to reinstate a prior removal order.”
Id. at 705.
   Other courts of appeals have reached the same conclusion. For example,
the Eleventh Circuit determined the following:
      [Sections] 1229a(a) and 1231(a)(5) “pertain to different proceedings and orders, by
      different officials, with different opportunities to apply for relief, reopening, and
      review.” Section 1229a(a) indisputably requires an immigration judge to conduct
      hearings to determine whether aliens are removable in the first instance. Thus, all
      aliens who illegally reenter the United States have already received a hearing before
      an immigration judge under § 1229a(a). Rather than expressly providing these aliens
      a time-consuming hearing each and every time they illegally reenter, Congress
      empowered the Attorney General to swiftly reinstate an illegal reentrant’s existing
      removal order under § 1231(a)(5). In turn, the Attorney General assigned this
      ministerial task to immigration officers . . . .

        ....

        . . . [W]e hold the Attorney General did not overstep his authority in promulgating
      

, and illegal reentrants, like Petitioner, are not entitled to a hearing
      before an immigration judge.

De Sandoval v. U.S. Att’y Gen., 

 (11th Cir. 2006).3
   We agree with the rationale set forth in the decisions described above. The
respondent already received the requisite hearing before an Immigration Judge
to determine the issue of deportability in 1992. When a previously deported
3
  We note that the quoted text from De Sandoval v. U.S. Att’y 

 cites to 

, whereas our discussion refers to 

. Both regulations provide the
same standards for reinstatement of removal orders, but § 241.8 applies to the DHS, while
§ 1241.8 applies to the Executive Office for Immigration Review.

                                            121
Cite as 

 (BIA 2007)                         Interim Decision #3557



alien makes a subsequent illegal reentry, a second hearing before an
Immigration Judge is not required by the statute, and the procedures outlined
in section 241(a)(5) of the Act and its implementing regulations are
controlling. We therefore reject the respondent’s argument that he has the
right to a hearing before an Immigration Judge. See also Ochoa-Carrillo v.
Gonzales, 

 (8th Cir. 2006) (validating as consistent with
section 241(a)(5) of the Act the regulation permitting reinstatement of a prior
order of removal through a DHS officer, without a hearing before an
Immigration Judge); Lattab v. Ashcroft, 

 (1st Cir. 2004)
(finding that the regulation permitting reinstatement of a prior removal order
without a hearing before an Immigration Judge is not inconsistent with section
241(a)(5) of the Act); Matter of G-N-C-, 

 (BIA 1998)
(noting that the Immigration Judges and the Board have no authority to review
challenges to a reinstated deportation order).
   Having concluded that the Immigration Judge did not err in finding that he
lacked the authority to reinstate the respondent’s prior deportation order, we
must now decide whether he erred in terminating the respondent’s removal
proceedings. The regulations allow the appropriate officials to cancel a
Notice to Appear, prior to the time jurisdiction vests with the Immigration
Judge, on the basis that it was improvidently issued. See 

(a)(6) (2006). However, once jurisdiction vests with the Immigration
Judge, the Notice to Appear cannot be cancelled. Instead, if there is a valid
reason specified in the regulations for cancelling the Notice to Appear, the
DHS may move for dismissal of the matter, i.e., request termination of the
removal proceedings. See 

(c); see also Matter of G-N-C-,
supra, at 284. In this case, a valid regulatory reason existed for cancelling the
Notice to Appear, i.e., it was improvidently issued because removal
proceedings were not necessary to remove the respondent from the United
States since he could have been removed by reinstatement of his prior
deportation order. Therefore, we conclude that the Immigration Judge did not
err when he granted the DHS’s motion to terminate the respondent’s removal
proceedings. See Matter of Vizcarra-Delgadillo, 

 (BIA 1968)
(finding that deportation proceedings may be terminated as “improvidently
begun”).
   The respondent argues that his former deportation order cannot be
reinstated because the Government did not meet its burden of proving that he
was deported and reentered the United States. However, our decision is
limited to determining that the Immigration Judge did not err in finding that
he lacked authority to reinstate the respondent’s deportation order and in
terminating the respondent’s removal proceedings. Whether or not the criteria
for reinstating the prior order have been met is for the immigration officer, not
the Immigration Judge or the Board, to decide. Therefore, we need not
address the merits of the respondent’s arguments on this point. Likewise,


                                      122
Cite as 

 (BIA 2007)                                Interim Decision #3557



other than noting that the respondent waived his right to appeal his 1992
deportation order, we need not address his arguments attacking the validity of
that order, because the only issues before us are the Immigration Judge’s
authority to reinstate the prior deportation order and his decision to terminate
the respondent’s removal proceedings.
   Finally, we note that the respondent has asked us to remand his case to the
Immigration Judge to permit him to apply for asylum and withholding of
removal. Although the statute states that an alien whose former deportation
order has been reinstated is not eligible, and therefore may not apply, for any
relief from removal under the Act, the regulations provide a specific exception
that allows an alien in the respondent’s position to seek relief. Specifically,

(e) provides the following:
       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
     for an interview to determine whether the alien has a reasonable fear of persecution
     or torture pursuant to § 1208.31 of this chapter.

Thus the regulations provide a procedure for any alien who, like the
respondent, claims a fear of returning to his country to apply for withholding
of removal. Because this procedure is available, we will deny the
respondent’s motion to remand.
                               IV. CONCLUSION

  We conclude that there is no statutory or regulatory authority that allows an
Immigration Judge to reinstate a prior order of deportation pursuant to section
241(a)(5) of the Act. Moreover, we find no error in the Immigration Judge’s
decision to terminate the respondent’s removal proceedings as improvidently
begun. Accordingly, the respondent’s appeal will be dismissed. Finally,
because the regulations provide a mechanism for someone in the respondent’s
position to apply for withholding of removal, his motion to remand will be
denied.
  ORDER: The appeal is dismissed.
  FURTHER ORDER: The respondent’s motion to remand is denied.




                                          123