Gallo-Alvarez

This consolidated case presents the question of whether 8 U.S.C. § 1231 (a)(5) permits the Immigration and Naturalization Service (“INS”), to reinstate an order of deportation summarily pertaining to an alien who was granted voluntary departure in lieu of deportation. We hold that the statute allows the INS to do so, but that the record in this instance is insufficient to determine whether § 1231 applies to the petitioner. Thus, we remand the appeal and transfer the petition for review to the district court for evidentiary resolution of the relevant issues. Given this result, we do not reach the question as to the constitutionality of the reinstatement provision.

*1126 I

Rosario Gallo-Alvarez (“Gallo”) was born in Jalisco, Mexico in 1951. He entered the United States illegally in 1972, and has been in this country more or less continuously since that time, working at a series of restaurants. In 1974, the INS apprehended Gallo after raiding the restaurant where he was working, and sent him back to Mexico. He returned approximately ten days later. Gallo was arrested in 1979 as he returned from a brief trip to Mexico and ultimately pleaded guilty to falsely claiming to be a United…