[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR241.8]

[Page 465-466]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY
 
PART 241_APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED--Table of 
Contents
 
              Subpart A_Post-hearing Detention and Removal
 
Sec. 241.8  Reinstatement of removal orders.

    (a) Applicability. An alien who illegally reenters the United States 
after having been removed, or having departed voluntarily, while under 
an order of exclusion, deportation, or removal shall be removed from the 
United States by reinstating the prior order. The alien has no right to 
a hearing before an immigration judge in such circumstances. In 
establishing whether an alien is subject to this section, the 
immigration officer shall determine the following:
    (1) Whether the alien has been subject to a prior order of removal. 
The immigration officer must obtain the prior order of exclusion, 
deportation, or removal relating to the alien.
    (2) The identity of the alien, i.e., whether the alien is in fact an 
alien who was previously removed, or who departed voluntarily while 
under an order of exclusion, deportation, or removal. In disputed cases, 
verification of identity shall be accomplished by a comparison of 
fingerprints between those of the previously excluded, deported, or 
removed alien contained in Service records and those of the subject 
alien. In the absence of fingerprints in a disputed case the alien shall 
not be removed pursuant to this paragraph.
    (3) Whether the alien unlawfully reentered the United States. In 
making this determination, the officer shall consider all relevant 
evidence, including statements made by the alien and any evidence in the 
alien's possession. The immigration officer shall attempt to verify an 
alien's claim, if any, that he or she was lawfully admitted, which shall 
include a check of Service data systems available to the officer.
    (b) Notice. If an officer determines that an alien is subject to 
removal under this section, he or she shall provide the alien with 
written notice of his or her determination. The officer shall advise the 
alien that he or she may make a written or oral statement contesting the 
determination. If the alien wishes to make such a statement, the officer 
shall allow the alien to do so and shall consider whether the alien's 
statement warrants reconsideration of the determination.
    (c) Order. If the requirements of paragraph (a) of this section are 
met, the alien shall be removed under the previous order of exclusion, 
deportation, or removal in accordance with section 241(a)(5) of the Act.
    (d) Exception for applicants for benefits under section 902 of HRIFA 
or sections

[[Page 466]]

202 or 203 of NACARA. If an alien who is otherwise subject to this 
section has applied for adjustment of status under either section 902 of 
Division A of Public Law 105-277, the Haitian Refugee Immigrant Fairness 
Act of 1998 (HRIFA), or section 202 of Pubic Law 105-100, the Nicaraguan 
Adjustment and Central American Relief Act (NACARA), the provisions of 
section 241(a)(5) of the Immigration and Nationality Act shall not 
apply. The immigration officer may not reinstate the prior order in 
accordance with this section unless and until a final decision to deny 
the application for adjustment has been made. If the application for 
adjustment of status is granted, the prior order shall be rendered moot.
    (e) 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 Sec. 208.31 of this chapter.
    (f) Execution of reinstated order. Execution of the reinstated order 
of removal and detention of the alien shall be administered in 
accordance with this part.

[62 FR 10378, Mar. 6, 1997, as amended at 64 FR 8495, Feb. 19, 1999; 66 
FR 29451, May 31, 2001]