Old Deportation Order: Your Rights and Options

An old deportation order does not automatically mean you will be removed immediately. You may have legal options including filing a motion to reopen, requesting a stay of deportation, or applying for relief under INA §240A. The right path depends on your circumstances. Consult an immigration attorney promptly — ICE can act on old orders at any time.

Quick Answer

A prior order of removal remains legally enforceable regardless of how much time has passed. However, depending on your situation, you may qualify for one or more forms of relief that can delay, cancel, or challenge that order. Acting quickly and working with a qualified attorney is critical, since ICE can reinstate an old deportation order without a new hearing in many cases.

When an Old Deportation Order Can Be Reinstated

Under INA §241(a)(5) and 8 CFR §241.8, ICE has the authority to reinstate a prior order of removal if you re-entered the United States illegally after being deported. Reinstatement of removal is a fast-track process — you generally do not get a new immigration court hearing. However, there are important exceptions:

• Fear of persecution or torture: If you express a fear of returning to your home country, you must be referred to an asylum officer for a reasonable fear screening under 8 CFR §208.31.
• Legal re-entry: If you returned to the US with proper authorization (e.g., a valid visa or parole), reinstatement may not apply.
• Withholding of removal: Even under a reinstated order, you may apply for withholding of removal or protection under the Convention Against Torture (CAT).
• Errors in the original order: If the original order was issued in absentia (you were not present) or contained procedural errors, it may be challengeable.

Your Step-by-Step Options

1. Identify the type and age of your order. Obtain a copy of your order of removal through the Executive Office for Immigration Review (EOIR) or your attorney. Determine whether it was issued in absentia or after a full hearing.
2. File a Motion to Reopen (if eligible). Under 8 CFR §1003.23, you generally have 90 days from the date of the final order to file a motion to reopen. Exceptions exist for orders issued in absentia — you may file at any time if you can show you did not receive notice of the hearing.
3. File a Motion to Reconsider (if eligible). You have 30 days from the order of removal to file a motion to reconsider, arguing legal or factual error.
4. Request a Stay of Deportation (Form I-246). You may request a stay of removal from ICE to pause enforcement while you pursue other relief. Check the current filing fee on ice.gov.
5. Apply for Cancellation of Removal (if eligible). Under INA §240A, non-permanent residents with at least 10 years of continuous presence, good moral character, and a qualifying US citizen or LPR relative may apply for cancellation of removal before an immigration judge.
6. Consult an immigration attorney immediately. Ilya Fishkin, immigration attorney specializes in deportation defense and can evaluate which options apply to your specific case.

What the Law Says

Several key provisions of the Immigration and Nationality Act (INA) govern old removal orders:

• INA §241(a)(5) — authorizes reinstatement of prior removal orders for individuals who illegally re-entered after deportation.
• INA §240A — provides for cancellation of removal for certain long-term residents.
• INA §241(c)(2) — allows for voluntary departure as an alternative, with a statutory maximum period of 120 days if granted before an immigration judge.
• 8 CFR §1003.23 — sets the 90-day deadline for motions to reopen; motions based on in absentia orders may be filed outside this window under specific conditions.
• 8 CFR §208.31 — mandates a reasonable fear screening before removal for individuals under a reinstated order who claim fear of persecution or torture.

For official guidance on removal proceedings and your rights, see the U.S. Department of Justice and USCIS.

Important Fees to Know

Some relief options involve government filing fees. For example, a Stay of Deportation request (Form I-246) currently carries a fee — verify the exact amount on ice.gov before filing. If you are apprehended in connection with an old in absentia order or as an inadmissible alien, an arrest fee of $5,300 may apply. Always confirm current fees on official government websites, as they are subject to change.

This material is for informational purposes only and does not constitute legal advice.