Motion to Reopen in Absentia

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. Some did not receive notice of the hearing and did not know about it.

This article will talk about the last reason mentioned, those who did not attend their hearing because of lack of proper notice. 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 I 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.

Procedure

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. 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.