After deportation has occurred, it becomes far more difficult to arrange lawful re-entry into the United States for the client.  If s/he re-enters illegally, aside from the criminal exposure s/he faces for the federal offense of illegal re-entry after deportation, the federal courts and immigration courts frequently regard him or her as having forfeited any right to regain lawful status in the United States.

 

            If the client has not re-entered illegally, however, it may be possible to establish that the deportation was not lawfully accomplished, and to obtain a court order allowing the noncitizen to re-enter the United States legally for this reason.  In addition, under some circumstances, if the problematic criminal history has been eliminated after deportation by means of post-conviction relief, it may be possible for the client to re-immigrate into the United States by means of consular processing. 

 

            A temporary, non-immigrant visit may also be possible if a waiver of any remaining grounds of inadmissibility can be arranged through consular authorities.  It is far easier to obtain a temporary waiver for this purpose than to immigrate again as a lawful permanent resident.

 

First Circuit

POST CON RELIEF - EFFECTIVE ORDER - DENIAL OF MOTION TO REOPEN REMOVAL PROCEEDINGS AFTER VACATUR AFFIRMED SINCE REGULATION PROHIBITED MOTION TO REOPEN AFTER NONCITIZEN HAD LEFT THE UNITED STATES
Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. Jun. 13, 2007) (BIA's refusal to reopen removal proceedings after a criminal conviction was vacated is affirmed where IIRAIRA's repeal of 8 U.S.C. 1105a(c) (1994) (repealed 1996) ("An order of deportation ... shall not be reviewed by any court if the alien ... has departed from the United States after the issuance of the order.") did not invalidate the regulation, 8 C.F.R. 1003.23(b)(1) ("A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.").

Third Circuit

POST CON RELIEF " REMOVAL PROCEEDINGS " RETURN TO THE UNITED STATES
Orabi v. Attorney General of the U.S., 738 F.3d 535, 528 (3d Cir. Jan. 2, 2014) (even after deportation, the Government was prepared to return noncitizen to the United States under certain circumstances pursuant to ICE regulations); see ICE Policy, 11061.1(2) (Absent extraordinary circumstances, if an alien who prevails before the U.S. Supreme Court or a U.S. [C]ourt of [A]ppeals was removed while his or her [petition for review] was pending, ICE will facilitate the alien's return to the United States if either the court's decision restores the alien to lawful permanent resident (LPR) status, or the alien's presence is necessary for continued administrative removal proceedings.); see also 8 U.S.C. 1229a(b)(2)(A) (requiring an immigrant's presence at a removal hearing absent the parties' consent or a telephonic or video conference).

Fourth Circuit

MOTIONS TO REOPEN - DEPORTED NONCITIZENS
William v. Gonzales, 499 F.3d 329 (4th Cir. Sept. 6, 2007) ("We find that [8 U.S.C.] 1229a(c)(7)(A) unambiguously provides an alien with the right to file one motion to reopen, regardless of whether he is within or without the country. ... it is evident that 8 C.F.R. 1003.2(d), containing the post-departure bar on motions to reopen, conflicts with the statute by restricting the availability of motions to reopen to those aliens who remain in the United States. Therefore, we conclude that this regulation lacks authority and is invalid.").

Ninth Circuit

POST-CON " VACATUR AFTER DEPORTATION
United States v. Barrios-Siguenza, 747 F.3d 1222, 1223 (9th Cir. Apr. 9, 2014) (We were assured at oral argument that Barrios will return for trial should the government choose to retry him and parole him into the country for that purpose. Cf. United States v. Leal"Del Carmen, 697 F.3d 964, 975 (9th Cir. 2012) (discussing the Attorney General's authority to parole aliens into the country to testify in criminal prosecutions (citing 8 U.S.C. 1182(d)(5)(A))). Given the government's authority to permit Barrios to return for retrial, and counsel's assurances that Barrios would be willing to do so, this case is unlikely to languish for an indefinite period before the district court, should the government choose to retry Barrios.).

Other

POST-DEPARTURE MOTIONS TO REOPEN
Post-Deportation Human Rights Project practice advisory, "Filing Post-Departure Motions to Reopen or Reconsider," at www.bc.edu/postdeportation. The advisory provides guidance on filing MTRs on behalf of clients who have been ordered deported/excluded/removed and are seeking reopening or reconsideration from outside the United States.