By Attorney Devin M. Connolly
The ability to apply for permanent resident status (green card) in the U.S. rather than at the Embassy in your native country is frequently more than a simple convenience. Rather, being forced to depart the U.S. and apply abroad can have life-altering consequences. By leaving the U.S. an applicant may be making themselves ineligible for the very thing they are leaving the U.S. to apply for – a green card. And no, it does not matter that they only reason you left the U.S. was because you were told that you were ineligible be granted your green card from within the U.S.
So it is clear that it is beneficial to apply in the U.S. Not only is it less disruptive to your life and likely less expensive since you do not have to travel, but you also will not trigger any bars to returning because you would have never left. Unfortunately though, not everybody is eligible to be granted their green card in the U.S.
There are many reasons why a person may not be currently eligible to apply for their green card in the U.S. A common reason for this ineligibility is because they were previously ordered deported. Whether they were ordered deported after failing to appear in Immigration Court or because the Immigration Judge denied their application, this outstanding order of deportation will make you ineligible for your green card. It then becomes necessary to have the prior court case reopened.
A person will be ordered deported if they fail to appear for their hearing in Immigration Court. This is referred to as an in absentia order of deportation. A foreign national issued an in absentia order of deportation has 180 days to file a motion with the Immigration Court requesting that the order be rescinded because their failure to appear was due to ‘exceptional circumstances.’ The term ‘exceptional circumstances’ refers to compelling situations beyond the control of the foreign national, such as serious illness to themselves or serious illness or death of their spouse, child, or parent. As you can see, a case will not be reopened for something as trivial as car problems the day of the hearing or an inability to take time off from work. Rather, it truly must be an exceptional situation for a case to be reopened on this ground.
A second reason an in absentia order of deportation may be rescinded is if the Immigration Court did not provide proper notice of the time, date and location of the hearing. And while many people are indeed notified and simply choose not to appear because they fear the outcome will not be positive, many others are not properly notified. There are no official time limits on filing a motion based on a lack of notice, but a person should make this request to the court in a timely manner after learning that they were ordered deported. It is also important to note that a foreign national is required to inform the Immigration Court when they changes their address, Thus, a person cannot fail to appear after moving and then ask for their case to be reopened because the post office did not properly forward their mail.
There are also times when a person appears in court and submits their application for relief, only to have the Immigration Judge deny their case. The foreign national may even appeal and have their case denied by the Board of Immigration Appeals as well. In this situation a person is required to file their motion to reopen within 90 days of the decision. But what happens if you do not become eligible for your green card for several years, perhaps when your child turns 21-years-old. Despite being well beyond the 90-day limit, it may still be possible to have your case reopened and be granted your green card. You will have to show clear evidence that you are eligible for your green card if the court case is reopened, and it helps to also show compelling evidence why your case should be reopened, such as hardship to family members or significant ties to the U.S.
Despite an outstanding order of deportation, a green card may still be within your grasp. It is advisable to consult an experienced and knowledgeable attorney who is dedicated solely to the practice of immigration law so that they may advise you of potential options and their likelihood of success.