CASE: Motion to Reopen
CLIENT: Ivorian (Cote D’Ivoire)
LOCATION: Atlanta, GA
Our client came to the United States with a valid P-1 visa from Cote D’Ivoire in 1997. Later, she married her U.S. Citizen ex-husband and her ex-husband filed an I-130 petition on her behalf. Our client also simultaneously filed an I-485 adjustment of status application. While the petition and application were pending, our client moved to a different apartment and filed a change of address to the INS. However, they did not receive any interview notice from the INS for two years, so they hired an immigration attorney to follow-up on their pending application. Apparently, to no knowledge of Respondent, the INS issued an interview notice, but it was delivered to the wrong address. Only after a decade later through a file request did our client find out about the interview notice. Since our client could not appear at her interview, her adjustment application was deemed abandoned, and she was placed in removal proceedings based on her overstay.
Unfortunately, our client was not aware of the issuance of the Notice to Appear (“NTA”). Based on the file she obtained years later from her file request, the Notice to Appear (NTA) was sent by regular mail and her address was completely wrong. Our client never lived at the address stated on the NTA and never wrote that address on any form submitted to the USCIS nor the former INS. Our client thus never received her NTA, never knew about her being in removal proceedings nor her obligations to submit Form EOIR-33. Because of her absence at the hearing at the Atlanta Immigration Court, the court issued an in absentia order of removal in 2001.
Our client got divorced with her ex-husband five years ago. She married her current U.S. Citizen husband last year and contacted our office to seek legal assistance for her adjustment of status in November 2011. After obtaining background information, we informed her that she has a final order of removal since 2001. Our client was surprised because she actually had an attorney in 2002 to follow up on her case and she was never informed by the immigration service nor by her attorney of this final order. She told us that she never received an NTA. We advised her that she needs to file a Motion to Reopen in absentia order of removal.
Through a Motion to Reopen In Absentia Order of Removal, 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 your hearing. If the Notice to Appear was sent to the wrong address for example, and not the last address you provided to the immigration service, then you’d have a good basis for this type of Motion to Reopen.
On December 2, 2011, our office filed the Motion to Reopen with the Atlanta Immigration Court. Documentation of her address at the date of the final order, a detailed affidavit regarding her addresses and the circumstances around the final order date, documentation of the last address she provided to the immigration service prior to the final order, and other supporting documents were submitted (12 exhibits). The Department of Homeland Security filed a non- opposition to our Motion. On December 13, 2011, the Atlanta Immigration Court granted our motion and reopened our client’s case. Now our client does not have a final order of removal and may seek adjustment of status relief with the Immigration Court upon approval of an I-130, or seek termination of proceedings for the CIS to adjudicate her green card application also upon approval of her I-130.
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