Reinstatement of Removal

Ruiz v. Holder, No. 12-3900 (6th Cir. 2013) (unpublished).http://www.ca6.uscourts.gov/opinions.pdf/13a0893n-06.pdf

The issue in this reinstatement case was whether the noncitizen timely complied with the voluntary departure order.  If he did, then there is no order to reinstate.  If he did not, the order can be reinstated because he reentered without inspection.

The court found that it had jurisdiction over the reinstatement challenge even though Ruiz did not sign the Notice of Intent form or indicate an intention to challenge the reinstatement request administratively.  This is not a required remedy that has to be exhausted because it is not an administrative remedy.

The court found that the streamlined reinstatement process does not violate due process.  The court acknowledged the difficult road to challenge a reinstated order because judicial review is limited to the administrative record and if the noncitizen does not submit documents to ICE, the record will be thin on review.

The court found no prejudice because it concluded that it did not  matter if he complied with the voluntary departure order because he later entered without inspection.  This raises the question of what order is being reinstated if there was only a voluntary departure order, not a removal order.  This also raises the question of whether the deprivation of the right to apply for cancellation of removal results in prejudice even if the relief is discretionary (see St. Cyr).