By Attorneys Robert L. Reeves & Elsie Hui Arias
Immigrants who fail or refuse to attend their removal hearing “without reasonable cause” will be ordered deported in absentia (in their absence) by the immigration judge (IJ). These individuals face serious legal ramifications, including a five-year bar from seeking entry to the U.S. and a ten-year bar from seeking many forms of relief, such as cancellation of removal, voluntary departure and adjustment of status. However, in certain circumstances, it is possible for an IJ to reopen a case, thereby rescinding the in absentia deportation or removal order, to allow an alien respondent to seek relief in proceedings.
An in absentia order by an IJ may only be rescinded in a couple of situations. The first basis requires a showing of “exceptional circumstances” that prevented the respondent from appearing at the removal hearing, e.g., medical emergency. The motion to reopen must be supported by an affidavit and credible evidence, and filed within 180 days of the removal order. The 180-day deadline can be tolled in instances of ineffective assistance of counsel, but the affected individual should exercise due diligence in timely seeking a rescission of his in absentia order on this ground. It is also important to note that an individual who was ordered deported prior to the enactment of Illegal Immigration and Immigrant Responsibility Act (IIRIRA) on April 1, 1997, can file as many motions as necessary to reopen their deportation case based on “exceptional circumstances.” This rule contrasts to removal proceedings under IIRIRA, where individuals are generally limited to one motion to reopen.
Lack of proper notice can also constitute a ground to rescind an in absentia removal order because of due process concerns. Notice of the court hearing is deemed adequate if it is sent to the most recent address provided by the respondent, and contains the date, time, and place for the hearing. The mailed notice can be sent out by normal first-class mail; IIRIRA eliminated the requirement that the notice be delivered by U.S. certified mail. A respondent’s failure to update the IJ of a change of address is not a defense to lack of notice, as non-U.S. citizens are legally obligated to apprise the immigration court of their current contact information. Unlike the 180-day deadline for exceptional circumstances, a motion to reopen based on lack of notice can be filed at any time.
Filing a motion to reopen based on exceptional circumstances or lack of notice automatically stays an alien’s removal from the United States until the IJ makes a decision. The IJ’s decision can be appealed to the Board of Immigration Appeals (BIA) and the circuit court of appeals (the latter is limited by jurisdiction to review of certain issues only). It is also important to note that an immigrant with an in absentia deportation order pre-IIRIRA (i.e., before April 1, 1997), is subject to different laws and requirements for reopening an in absentia order.
Next week we will discuss the possibilities of reopening a case where the IJ ordered an alien deported or removed on the merits. Part III will cover how to successfully persuade the BIA to reopen a prior deportation appeal.
Due to the legal and procedural complexities in reopening the case of an immigrant who has been ordered deported, it is highly advisable to consult with an attorney who is knowledgeable and experienced in removal defense.