Castro-Cortez

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) Pub.L. No. 104-208, 110 Stat. 3009-546 (1996) breathed new life into a dormant provision of the Immigration and Nationality Act (INA) that permitted the INS to reinstate prior orders of removal against aliens who reentered the United States. 1 The revised provision, codified at INA § 241(a)(5), 8 U.S.C. § 1231 (a)(5), not only expands the types of orders subject to reinstatement, but constrains the relief available to aliens whose orders are reinstated. When implementing the revised provision, the government decided to change the practice set forth in its prior regulations which provided aliens subject to orders of reinstatement with hearings before an Immigration Judge (IJ). Instead, the INS instituted a new procedure whereby it reinstated such orders and removed such aliens without affording hearings of any sort.

In this case, we are asked to decide whether the government’s new reinstatement procedure violates the Due Process Clause of the Fifth Amendment. We are also asked to decide whether the new procedure actually applies to the aliens in this case, because all five petitioners reentered the…

Dissenting:

These cases involve aliens who came to our country illegally, were discovered, and who were accorded the procedural and due *1054 process rights we offer before they were deported. Nothing deterred, and with nothing if not disdain for our laws, they almost immediately reentered illegally. 1 They were not unique, and Congress was very concerned about the problems that they and others caused.

An objective observer would have asked, as Congress did, just what was the purpose of all of that procedure, all of those punctilious niceties, which can take years to complete, if the person could just step back into the country a few days later and have the roundelay go on? Society might well have saved its time and concern in the first place; after all, it could not protect itself against the alien’s improper presence anyway. In an attempt to correct that problem, Congress took an existing concept and expanded it. In what is now 8 U.S.C. § 1231 (a)(5), Congress decided to allow what amounts to recognition and execution of the prior judgment. It declared:

Id.

We are now told that in enacting the provision, which was clearly designed to deny benefits to aliens who had already…