[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

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



[[Page 466]]



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 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]