UNDER Title 8 of the Code of Federal Regulations (CFR) Sec. 245.2(a), if an alien is in deportation or removal proceedings, his application for adjustment to lawful permanent residence status can only be made and considered in those proceedings. For those persons who have had a deportation order entered against them in absentia (i.e. the person did not appear at the deportation hearing), and are now eligible for adjustment of status (such as through marriage to a United States citizen), the foregoing code requires reopening of the deportation or removal proceedings for the adjustment application to be considered. This article explores possible ways to reopen deportation or removal proceedings so that a deportation order can be rescinded and the adjustment application can be heard.
If an alien failed to appear for the deportation hearing and was ordered deported in absentia, the proceedings can be reopened and the order rescinded if the alien can show that he did not receive any notice of the deportation hearing. An order entered in absentia may be rescinded upon a motion to reopen filed at any time if the alien demonstrates that he or she did not receive notice and the failure to appear was through no fault of the alien. The filing of a motion to reopen stays the deportation of the alien pending decision on the motion and the adjudication of any properly filed administrative appeal. 8 CFR Sec. 1003.23(b)(4)(iii). Notice of the time and place of deportation proceedings in writing must be given in person to the alien, or if that is not practicable, shall be given by certified mail to the alien. Immigration and Nationality Act (INA) Sec. 242B(a)(2)(A). If by certified mail, written notice must be provided to the alien at the most recent address reported by the alien. INA Sec. 242B(c)(1), Matter of Grijalva, Interim Decision 3246 (BIA 1995).
Furthermore, deportation proceedings may be reopened by the Court sua sponte (i.e. on its own accord). An Immigration Judge may upon his or her own motion at any time, or upon the motion of the alien, reopen or reconsider any case in which he or she has made a decision. 8 CFR Sec. 1003.23(b)(1). Exceptional circumstances that would warrant reopening include fundamental changes in law. [Matter of G-D, Int. Dec. 34 18 (BIA 1999)]. Exceptional facts of a particular case may also form the basis to reopen proceedings. Matter of J-J-, Int. Dec. 3323 (BIA 1997). What would constitute facts so exceptional that reopening is warranted is left to the discretion of the Court.
Once proceedings are reopened and the deportation order is rescinded, the Court may then consider any application for adjustment of status. The procedure involved to change a person’s status from one who is subject to deportation to that of lawful permanent resident can be very complex. If you are one who faces such a situation, it is advised that you retain an experienced attorney to assist in the process. Darrick Tan is an attorney with the Law Offices of Kenneth U. Reyes, P.C. He is a Board of Governor of the Philippine American Bar Association. He is a graduate of Southwestern University School of Law and UCLA. He has been admitted to practice in California and Nevada. Law Offices Of Kenneth U. Reyes, P.C. is located at 3699 Wilshire Boulevard, Suite 700, Los Angeles, California 90010. Telephone (213) 388-1611 or e-mail at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
( Published March 12, 2010 in RedCarpet p. 5 )
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