“If the alien’s failure to appear was caused by ‘exceptional circumstances,’ the Motion to Reopen must be filed within 180 days of the order. ‘Exceptional circumstances’ is defined as INCLUDING serious illness of the alien or death of a close relative, but not including ‘less compelling’ circumstances.”
FOR the better part of the past ten years, the 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 “final 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 specific 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 filing of Motions to Reopen.
Generally, Motions to reopen removal proceedings must be filed 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 alien has been ordered deported 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 filed 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 filed within 180 days of the order. “Exceptional circumstances” is defined as INCLUDING serious illness of the alien or death of a close relative, but not including “less compelling” circumstances. Therefore, certain ailments or incapacities that are not suggested in the statute may also excuse a failure to appear.
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 case, 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 final order of deportation should consult a competent attorney, with demonstrated experience in these matters. The attorney should be able to advise as to what evidence was presented against him to establish his removability and proper service, and how to present an argument against effective service, in order to successfully reopen the deportation case.
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Daniel P. Hanlon is a California State Bar Certified 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 “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.
