PETITION FOR REVIEW OF A DECISION OF UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT.
The opinion of the court was delivered by: Barry, Circuit Judge
Before: SLOVITER, BARRY, and SILER, JR.,*fn1 Circuit Judges.
Petitioner contests the reinstatement of a twenty-year old order of removal, challenging both its legal and factual bases. Given the nature of the reinstatement procedure, the record before us is, not surprisingly, sparse and, in the ordinary case, might nonetheless be sufficient for us to perform the full judicial review we are required to perform. But petitioner, with some support in even that sparse record, has raised questions which, with further development of the facts, could lead to a different result. He also challenges the regulation that applies to a reinstatement determination, a challenge we reject. We will, however, vacate the reinstatement determination itself and remand so that the relevant facts can be developed and the open questions answered.
Petitioner Renato Manuel Da Costa Ponta-Garcia ("Ponta-Garcia") is a native and citizen of Portugal. In 1978, at age nine, he entered the United States with his family as a lawful permanent resident. Shortly thereafter, he and his family left the country for Bermuda, apparently relinquishing their lawful permanent resident status. In 1983, now age fourteen, PontaGarcia returned, with his family, to the United States as a visitor, and overstayed his visa. Removal proceedings were initiated against him and his family in 1985.
In 1987, an immigration judge found that the PontaGarcia family was subject to removal, and granted them the right to depart voluntarily by July 31, 1987. They did not do so, and Ponta-Garcia asserts that the order of removal was judicially invalidated at some later point. Some support for that assertion is the fact that on October 30, 1990, Ponta-Garcia applied for a "New Alien Registration Receipt Card," which application was granted in early 1991. It was noted on the application, presumably by the examining immigration officer, that PontaGarcia's original I-151 (green card) was "seen and destroyed on 1-4-91." The assertion is also supported by the fact that in April 1992, Ponta-Garcia went to Canada to attend a wedding, and reentered the United States four days later using his green card. This reentry occurred without incident. Finally, we note, it does not appear that any member of his family has been removed pursuant to the 1987 order of removal over these many years.
On March 2, 1995, Ponta-Garcia and his brother, Helder, filed a "Complaint for Declaratory and Injunctive Relief and Petition for Writ of Habeas Corpus (with Stay of Deportation)" in the U.S. District Court for the District of Connecticut, naming the Department of Justice and John P. Weiss, the officer in charge of the Immigration and Naturalization Service in Hartford, Connecticut, as defendants. A stay of deportation was granted that same day by the Hon. Dominic J. Squatrito, a motion for the review of bond was denied on March 13, 1995, and, for reasons unknown, the case was dismissed on March 28, 1995.
It may well have been the filing of that complaint that prompted the investigation of Ponta-Garcia's status and the affidavit of his girlfriend attesting to his trip to and from Canada in April 1992. Based on that affidavit, on March 16, 1995, a warrant for Ponta-Garcia's deportation was issued with the notation that he was "to be put in proceedings anew." JA17. (Query whether "proceedings anew" would have been necessary had the removal order not been invalidated.)
In any event, for twelve years after the warrant for deportation issued and for fifteen years after Ponta-Garcia reentered from Canada, nothing relevant to his immigration status -- at least, nothing of which we know -- appears to have happened. Then, in April 2007, Immigration and Customs Enforcement ("ICE") issued Ponta-Garcia a notice that it intended to reinstate the by-then twenty-year old order of removal, perhaps having been roused after all of those years when notified of one or more of Ponta-Garcia's run-ins with the law. The stated grounds for reinstatement were that PontaGarcia voluntarily departed the United States pursuant to an order of removal when he left the country for the visit to Canada, and that he illegally reentered the United States four days later. Acting through an immigration officer, ICE determined that Ponta-Garcia's order of removal was subject to reinstatement, and thus that he should be removed. This petition followed.
In 1996, Congress changed the manner in which reinstatements of orders of removal are handled. In relevant ...