DURING the last few years of the Bush Administration, USICE and related law enforcement agencies have embarked on an aggressive campaign to apprehend and remove from the United States thousands of aliens against whom "fi nal orders" of deportation or removal have been entered. Most of these individuals actually appeared in Immigration Court and were informed of the order for them to either leave the US voluntarily within a specifi c time frame or be deported. A high percentage of these aliens, however, never appeared in court, and were ordered deported "in absentia." While aliens who appeared in court and had their rights explained to them have very limited opportunities for relief from deportation, there may be relief for thousands of aliens ordered deported in absentia through the fi ling of Motions to Reopen.
Generally, Motions to reopen removal proceedings must be fi led within 90 days of the Immigration Judge’s or Board of Immigration Appeals’ ("BIA") order. Only one motion to reopen is permitted. This standard type of Motion to reopen is designed for cases in which new evidence or new eligibility for certain forms of relief from deportation become available after the court issues its order. Because of the strict time and numerical limitations, however, Motions to Reopen to apply for relief previously unavailable or based on changed facts are relatively rare.
When an immigrant has been ordered removed "in absentia;" i.e., without having been present at the hearing, the rules are quite different. If the alien did not receive proper notice of the hearing, the Motion may be fi led at ANY TIME after the order was entered.
If the alien’s failure to appear was caused by "exceptional circumstances," the Motion to Reopen must be fi led within 180 days of the order. "Exceptional circumstances" is defi ned as INCLUDING serious illness of the alien or death of a close relative, but not including "less compelling" circumstances. Therefore, certain ailments or other problems, including immigration consultant fraud, which are not suggested in the statute, may also excuse a failure to appear and allow for reopening of the removal order.
Proper service of notice is accomplished by either personal service of a Notice to Appear (NTA) (Formerly, Order to Show Cause (OSC), or if personal service is "not practicable," then by mail to the alien’s last known address or counsel of record. The BIA has held that service by mail to the alien must be by delivery to the alien or some other responsible person at the address provided by the alien. If the alien did not receive or cannot be charged with having received proper service, the Motion to reopen and rescind the in absentia order may offer relief. While the Motion to reopen is pending, the order of deportation is also stayed, such that the INS cannot physically remove the alien during that time.
The NTA or OSC warns the alien that he will be ordered deported in his absence if he fails to appear at the hearing. The Judge cannot properly order the alien removed if he did not receive proper written notice of this penalty. In some cases, however, even if the alien received written notice, he may be able to reopen the proceedings if he did not receive oral warnings of the consequences of the failure to appear and new relief has become available to the alien since the order was rendered.
Since every case is different, and the number of scenarios under which a Motion to reopen an in absentia order may be feasible are too numerous to mention here, any person who is the subject of a fi nal order of deportation should consult a competent attorney, with demonstrated experience in these matters. The attorney should always review the Immigration Court’s fi le and counsel his client as to what evidence was presented against him to establish his removability and whether service of the NTA was legally effective.
***
Daniel P. Hanlon is a California State Bar Certifi ed Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; tel. No. (626) 585-8005. Hanlon Law Group, PC is a "fullservice Immigration Law fi rm." E-mail: visas@ hanlon-greene.com and www.hanlon-greene.com
( Published on February 21, 2009 Asian Journal Los Angeles p. C3 )
| < Prev | Next > |
|---|
