Reentry After Expedited Removal

An alien who has reentered the United States unlawfully after entry of a prior order of exclusion, deportation, or removal is generally ineligible for a hearing before an Immigration Judge, or for any form of relief under the Act, and is to be removed expeditiously in accordance with his or her prior order.

An alien who reenters the United States illegally after having been removed or having departed voluntarily, under an order of removal, may be removed by reinstating the prior order of removal from its original date.  The prior order of removal is not subject to being reopened or reviewed and the alien is not eligible and may not apply for any relief under this chapter.  The alien shall be removed under the prior order at any time after the reentry. 8 U.S.C. § 1231(a)(5) (2000), See also 8 C.F.R. § 1241.8.

The Board of Immigration Appeals held in In re Cisneros-Gonzales 23 I.&N. 668 (BIA 2004) that a prior order of removal in a different removal proceeding does not trigger the "stop time" rule interrupting the alien's accrual of continuous physical presence to meet the ten year physical presence requirement to apply for cancellation of removal.

The court held that the bar to applying for cancellation of removal for a person who enters illegally after an order of removal, or expedited removal does not apply to an application for cancellation of removal if the entry occurred before IIRIRA became effective in 1997.  Castro-Cortez v. INS, 239 F3d 1037 (9th Cir. 2001).