Catholic University Law Review


Amid the largest refugee crisis in history, noncitizens fleeing persecution are routinely barred from applying for asylum in the United States solely because they have a reinstated order of removal. This bar to asylum access is mandated by federal regulation, and it applies indiscriminately—regardless of whether the asylum seeker was persecuted after her initial removal order was entered or whether her initial removal was based on one of the numerous, well-documented errors border patrol officers make when issuing removal orders.

This Article is the first academic piece to examine this regulation's statutory basis, including its legislative history and its troubling consequences. Based on a thorough analysis of the regulatory scheme's validity under the familiar Chevron framework and numerous policy considerations, this Article argues that the reinstatement of prior orders of removal should not bar asylum seekers from applying for asylum in the United States. This Article also explores how courts, the Department of Homeland Security, and Congress can resolve the tension created between the regulatory and underlying statutory scheme and the policy concerns flowing from it.