By Attorneys Robert L. Reeves and Ben Loveman
Just because you or a loved one have been ordered deported, have a final order of deportation or have decided to depart the United States while an appeal from deportation is pending does not mean that the chance to fight the case is lost.
A final order of deportation can be challenged from inside or outside the United States. A recent policy announcement from Immigrations Customs Enforcement (ICE) indicates that ICE will facilitate a non-citizen’s return to the United States should that person prevail on a challenge to that final deportation order. Possible scenarios where an immigrant would still be able to fight their case and be returned to the U.S. and restored to their previous status include motions to reopen and petitions for review which are granted after a person has departed from the United States.
A motion to reopen can generally only be filed within 90 days of the entry of the final order of deportation. However, there are a few important exceptions to this rule. The first exception applies in cases where the alien did not receive proper notice of the deportation hearing and was ordered deported without ever having a chance to contest the case or apply for relief from deportation.
The next exception applies in cases where a non-citizen was previously represented by an attorney who was negligent in presenting their case in court. If the alien’s previous attorney failed to provide effective representation, the alien will be able to file a motion to reopen outside the normal 90 day period. Other exceptions to the 90 day deadline exists in cases where the person can demonstrate materially changed circumstances which would give rise to or impact a claim for asylum.
In many cases a person whose deportation order was sustained by the Board of Immigration Appeals (BIA) may appeal the decision to the Federal Court of Appeals. Such an appeal can often drag on for many years. While such an appeal is pending, a person may have decided to depart the United States voluntarily because of their inability to find work, long separation from friends and family, or other reasons. Unlike where an alien abandons their BIA appeal by leaving the U.S., leaving while a petition for review is pending does not result in abandonment.
If a motion to reopen is granted or the Court of Appeals rules favorably on a case, it will then be possible for the alien to return to the United States. While this general principle is not new, ICE’s willingness to assist with the return of such persons to the United States is a new and a welcome change. Fighting a deportation case can be a long and sometimes frustrating process.
Often people will decide that they simply wish to return to their birth country as they grow weary of the struggle against deportation. In some cases people believe that because they have a prior order of deportation there is nothing that can be done to reopen their case.
Whether you or a loved one has a prior order of deportation (and are inside or outside the United States), or whether there is a pending petition for review and you or your loved one are outside the United States there are ways to continue to fight your case. To determine the best way to overcome these obstacles, it is important that you speak with an experienced and reputable immigration attorney who can fully analyze your case and advise what are your options.