In Absentia Order of Removal
If you do not go to your scheduled hearing with the Immigration Court, regardless of the reason, you will on that day have an in absentia order of removal. Once this is triggered, you are susceptible to being detained and subsequently deported by the Department of Homeland Security (DHS).
A lot of people have different reasons for not going to Court. Some do not know what to do. Some do not know the repercussions of not going to Court and do not go. Some were sick or got into an accident earlier that day. Yet some did not receive notice of the hearing and did not know about it. These people either did not receive proper notice of the Notice to Appear (NTA) or hearing notice.
In my experience, these types of cases originate from two common situations. One, the person is now detained and just found out that he had a hearing which he missed after he was detained. Two, the person comes to an attorney several months or even years later for an immigration consultation, brings some paperwork, and finds out after we check the Immigration Court system that he has a final order.
Stay of Removal / Deportation
To rescind the final order, one has to get his case reopened. This is done through a Motion to Reopen filed with the Immigration Judge who gave the final order. When you have an in absentia order of removal and a Motion to Reopen based on lack of notice is filed on your behalf, your deportation is also stayed. This means that while this motion is pending, the DHS cannot deport you. If you are detained while this is pending, it does not mean that they will release you, they just won’t deport you until there is final decision on the Motion to Reopen. If the Motion to Reopen is denied, it still can be appealed with the Board of Immigration Appeals (BIA). Again, this stays deportation.
Basis: Lack of Proper Notice
Based on this Motion to Reopen, the Immigration Judge can rescind the in absentia order of removal if you are able to show that you did not receive proper notice of the hearing. If the Notice to Appear was sent to the wrong address for example, an address that you did not provide to the immigration service, then that’s an example of lack of notice.
For deportation cases between June 13, 1992 and April 1, 1997, the charging document was called an Order to Show Cause (OSC) instead of a Notice to Appear (NTA). These were sent by certified mail, unlike now where the NTA is sent by regular mail. For proper service to be effectuated, the OSC must have been sent by certified mail and the return receipt signed by the subject or a responsible person at the subject’s address. So if your attorney, through a request of the immigration court, finds a copy of an unsigned receipt, a returned OSC mail, or return receipt which does not contain the client’s signature nor one of a responsible person in the client’s household, there would be no proper service. You would have a good argument for a Motion to Reopen, which should take away the final order and give you a new court date with the Immigration Judge.
For removal proceedings after April 1, 1997, there is no requirement that the NTA be mailed by certified mail. Regular mail is enough and a signature of receipt is thus not needed. The DHS has the responsibility to mail the NTA at the last address they have on you. The NTA notifies you that you are in removal proceedings, that you should inform the Court and the DHS if you change your address, and that you can be ordered removed if you don’t show up in Court. The Courts find proper service with the mere proof that the NTA was sent to the last address they have on file. Some are more lenient and reopen the case, stating that if you did not receive the NTA in the first place, you cannot be ordered removed in absentia if you failed to report your change of address.
Your attorney files the Motion to Reopen with the Immigration Court that issued the in absentia order of removal. There is no deadline for this if it is based on “no notice”. No matter how long ago the final order was issued, if you have a basis for this type of Motion to Reopen based on lack of notice, you can file it anytime. Your deportation is stayed while this is pending. There also is no filing fee for this motion. An affidavit from the alien and other evidence of non-receipt, including the hearing notice with an address, proof of your address at the time the Notice to Appear or hearing notice was sent, and other documents to show that you notified immigration of your latest address, should be included. Once the Immigration Judge grants the motion, you’re final order is terminated and you will get a new hearing date with the Immigration Judge. If you were detained, you may be eligible for release with or without a bond.
Now, you may have known your hearing and have a notice to appear or hearing notice, but because of certain circumstances – illness, wrong advice from counsel, weather, etc., you missed it. In these situations, you can still apply for a Motion to Reopen but it’s not based on no notice anymore, but instead based on “Exceptional Circumstances”.
The “no notice” Motion to Reopen has no deadline. You can file anytime. But Motions to Reopen In Absentia Orders of Removal based on Exceptional Circumstances must be filed within 180 days of entering the in absentia orders of removal. Same as the “no notice” Motion, this should be filed at the Court that issued the in absentia order of removal.
Some circuits allow for filing beyond the 180 day limit, a concept called “equitable tolling”, for certain reasons such as ineffective assistance of counsel.
An automatic stay still goes into effect for these types of Motions, and the filing fee is $110 payable to the Department of Justice.
There is a “totality of the circumstances” test in determining whether your reasons for not attending the hearing is an “exceptional circumstance”. The INA defines this as circumstances “such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances, beyond the control of the alien”.
So there should be a detailed affidavit explaining the exceptional circumstance, as well as supporting documents about it – medicals for example, or a print-out of flight delays or weather reports and news. Arguing for ineffective assistance of counsel should even include a copy of the bar complaint and a copy of the mailing document used to send a copy to the department responsible for these complaints, and also the attorney.
Since you knew about the hearing, you should also specify any attempts to notify the Court that you will miss it. For example, you tried calling the Court immediately after you found out that there would be severe snowstorm, or that you were very sick, etc.
It is also good to emphasize your previous attendance in Court and with CIS if any, as well as the relief you sought / are seeking. Our firm even attaches a copy of that relief (adjustment of status for example) to show the Court what the client is applying for (or applied for) upon reopening.
Consultations with our firm are free. So if you have any questions at all with motion to reopen applications, feel free to contact us by phone, email, or even visit our firm.
Should you eventually wish to retain our firm, we are experienced in preparing and filing motions to reopen with immigration court, and appeals of such with the Board of Immigration Appeals.
To us one the most important part of a motion to reopen in absentia case is the affidavit and the evidence. You cannot simply say you missed your hearing. The motion and the affidavit should detail specific dates and addresses, backed by concrete evidence of your address at that particular time. Your relief upon reopening is also important, that’s why we include a copy of an I-485 application for example if the client intends to apply for adjustment of status upon reopening.
We will make sure that you provide as much detail as possible in your affidavit, and that all issues are targeted within your statement and application. We will go over multiple drafts until names, addresses, dates, proper chronology, an assessment of the relief, are all addressed in the claim.
If there are any details that may be relevant to your claim, we will point those out to you and have you add those. When did you specifically move? What notices did you send to the immigration service? Who lives with you? Did they receive anything in the mail around that time? Did you ever miss hearings in the past? Did you go for an order of supervision in the past and have you been prompt on those appointments? Etc.
If there are any specific documents that we believe would strengthen your case, we will also point that out to you.
The point is that we believe the most important part of the motion is the prefiling stage. The arguments are almost the same – you did not get notice of the hearing. You can have a well-argued motion, but if that initial application lacks details, evidence, or has an affidavit that is incomplete (such as not having a prospective relief stated, no dates etc.), the Immigration Court or the Board could easily deny a case simply based on credibility issues. That’s why we believe utmost care, thoroughness, and attention to detail are important in the preparation of a motion to reopen application.
Our firm has had clients all over the United States, and we have accompanied them in interviews and hearings as well. Our firm will also prepare you for the interview or hearing, in many cases multiple times.
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