Appearing before the Immigration Judge to prove that you should be allowed to remain in the United States can seem dangerous and frightening. Many people have come to my office and explained to me that they received an Order to Show Cause and failed to appear at their hearing. When they did not appear at their scheduled hearing before the Immigration Judge, they were ordered deported in absentia. They ask me if there is any action that can be taken to stop the deportation process, even after they have already been ordered deported.
Receiving an Order to Show Cause (OSC) tells the recipient that the government believes that they are deportable and orders them to appear on a certain date in Immigration Court before the Immigration Judge. The consequences of deportation from the United States are severe and include a five-year bar from re-entering the country. The thought of being forced to leave one’s family, friends and career in the United States can engender feelings of fear and despair. However, the U.S. Constitution guarantees certain safeguards to protect foreigners from unfair treatment. In fact, the government may not deport anyone until the Immigration Judge determines that he or she is deportable by clear and convincing evidence. At a deportation hearing, you are entitled to seek various forms of relief from deportation, including voluntary departure. The Immigration Judge must listen carefully to your testimony, and that of your other witnesses. The Judge must also carefully consider any documentation you present and weigh all the evidence before making any determination.
In some cases where exceptional circumstances precluded a person from attending his deportation hearing, a qualified, experienced immigration attorney may file a motion to reopen the deportation proceedings and request a stay of deportation. The Motion is a written pleading directed to the Immigration Judge. A motion to reopen the proceedings is based on new facts that were not in evidence when the Judge made his deportation order in absentia. The new facts presented in the Motion to Reopen must show good reasons why the person failed to appear at his hearing. The Motion to Reopen is filed simultaneously with a request for a stay of deportation. This means that while the Judge is considering whether to reopen the case, the order to deport the alien is not acted upon.
If a person fails to appear for his hearing but is able to establish reasonable cause for his absence, the Immigration Judge will decide to reopen the hearing. Failure to appear can be excused for serious reasons or if the INS did not mail the notice to the address given by the applicant. Serious reasons include a death or severe illness of the applicant or a family member. I recently had a case where a mother was scheduled for a deportation hearing to respond to an Order to Show Cause. The night before her hearing, her daughter fell gravely ill. The mother was up all night nursing her young daughter. When morning dawned, the mother was exhausted, and unable to leave her daughter’s bedside. She failed to appear at the deportation hearing scheduled for her before the Immigration Judge and the Judge ordered her deported in absentia.
I prepared and filed a Motion to Reopen explaining the new facts to the Immigration Judge and requested a Stay of Deportation in her case. The Immigration Judge who determines whether to reopen the case is the very same Judge who ordered her deported in absentia. The Judge is allowed to use discretion in determining whether the reason for missing the hearing was excusable. The worried mother asked me, in the event that the Judge decides not to reopen her deportation proceedings, will she be required to report immediately for deportation from the United States? The answer is no. Even if the Judge denies the Motion to Reopen, I will appeal her case to a higher court known as the Board of Immigration Appeals (BIA).
In a recent decision by the BIA, called In re Rivera, the Board held that a Stay of Deportation filed with a Motion to Reopen deportation proceedings continues during the pendency of an appeal from the denial of such a motion by the Immigration Judge. The BIA, which is located in Falls Church, Virginia decides appeals from Immigration Courts across the nation. The Board of Immigration Appeals must review a written appeal that includes a detailed retelling of the facts as well as a thorough examination of the immigration laws. Since the Board receives numerous appeals, and their review of the documentation is quite time consuming, receiving a decision based on an appeal to the BIA can take more than a year. The impact of the In re Rivera decision mentioned above ensures that an immigrant may not be deported while waiting for a decision on an appeal to the BIA.
When you are facing an uncomfortable, unfamiliar situation, remember that the best advice will come from a person who has vast experience in confronting similar problems. The laws that govern immigration in this country are complex and ever changing. If you have a problem involving your immigration status, or the status of a family member, I suggest that you do not hesitate to consult an experienced immigration trial attorney who will be able to provide viable options and assist you in making informed decisions about your future.