Finally Freed or Infinitely Detained? The Need for a Clear Standard of Finality for Reinstated Orders of Removal

Circuits are currently split as to whether reinstated orders of removal are final orders of removal. The resolution of this circuit split and related legislative ambiguity has far-reaching implications for the rights of the 150,000 or more unauthorized immigrants who enter the United States each year. Reinstated orders of removal are a means by which the United States government can more rapidly deport individuals who reenter the country after having been previously deported. On July 29, 2016, in Guerra v. Shanahan, the United States Court of Appeals for the Second Circuit declared that reinstated orders of removal are not final orders of removal. As a result of that decision, the Second Circuit recognized that individuals detained under reinstated orders of removal have the right to a bond hearing. In contrast, on July 7, 2017, in Padilla-Ramirez v. Bible, the United States Court of Appeals for the Ninth Circuit determined that reinstated orders of removal are final orders of removal. The Ninth Circuit’s decision therefore rejected the proposition that individuals subject to reinstated orders of removal are entitled to a bond hearing. This Note argues that Congress should explicitly announce that reinstated orders of removal are not final orders of removal in order to safeguard the rights of individuals seeking protection in the United States. This Note further argues that, unless and until Congress acts on this issue, statutory and regulatory interpretation should lead future courts to the conclusion that reinstated orders of removal are not final orders.