Federal appeals courts overturn more than one thousand deportation orders every year. A significant number of those reversals involve non-citizens who are abroad because they have been deported as a result of losing their cases at the administrative level. Although an order overturning a deportation order ordinarily restores non-citizens to their prior status of being lawfully present in the United States, federal immigration authorities have used the fact of the non-citizen’s now-invalidated deportation to subject such non-citizens to a new and previously inapplicable set of standards that effectively prevents them from returning. Under this practice, non-citizens who seek to return after winning from abroad are treated as “arriving aliens,” meaning that because they are now outside the United States, the government can keep them out, even if they never should have been removed in the first place.
Neither courts nor scholars have addressed the lawfulness of applying the law’s more stringent “arriving alien” standards to non-citizens who prevail from abroad rather than the more lenient “deportability” standards that apply prior to the non-citizen’s removal. This Article examines the competing arguments for and against the government’s practice and concludes that relying on non-citizens’ wrongful deportations to apply new rules that keep non-citizens from returning deprives them of meaningful judicial review of their deportation orders in violation of both federal immigration law and the U.S. Constitution. Instead, requiring the government to apply the same “deportability” standards throughout a noncitizen’s removal proceedings will best ensure that erroneously deported individuals are permitted to reenter the United States, reunite with their families, and resume their lives as they existed prior to their removal.
Richard Frankel, Illegal Emigration: The Continuing Life of Invalid Deportation Orders, 65 SMU L. Rev. 503 (2012)