Monday, March 09, 2009


February 20, 2009

Judge Sloviter, Barry, and visiting Sixth Circuit Judge Siler, Jr. Decision by Judge Barry. For Mr. Ponta-Garcia, Michael P. DiRaimondo of DiRaimondo & Masi of Melville, NY. For the government, Andrew Oliveira of OIL.

Mr. Ponta-Garcia came to the United States as an LPR in 1978. In 1983, he came to the US as a visitor and then overstayed his visa. In 1987, an IJ entered a removal order. It is unclear whether that removal order was invalidated.

In 1995, the immigration authorities issued a warrant to arrest Mr. Ponta-Garcia for the stated purpose of starting new removal proceedings.

In April 2007, ICE informed Mr. Ponta-Garcia that it changed its mind and intended to reinstate the removal order from 1987. Under the IRRIRA law in 1996, the goverment can reinstate a removal order against anyone who reenters the U.S. illegally after being removed or after departing voluntarily under a removal order. In reinstatement, you are not entitled to see an immigration judge. The Third Circuit first ruled that the regulation for reinstating a removal order was valid.

But ICE made a different mistake -- it did not recognize that anyone facing reinstatement of removal has the right to prove that the original removal order was invalidated and the right to prove his most recent entry was with permission (not an illegal entry).

Because ICE did not develop the facts about whether the original removal order was invalidated and whether the most recent entry was with permission, the Third Circuit vacated ICE's order of reinstatement and remanded the case to ICE for further proceedings. The Third Circuit noted that there was some evidence that the original order had been invalidated and that the most recent entry was with permission.


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