QUESTION: It seems years ago I supposedly received a notice to go to court, but never went because I never really received the notice. What can I do?
Answer: An in absentia order may be rescinded by the immigration judge upon the filing of a motion to reopen if the respondent did not receive proper notice of the hearing.
Question: Where to file the Motion to Reopen?
Answer: The motion should be filed with the immigration court having administrative control over the record of proceedings. Typically, this will be the court where the in absentia order of removal or deportation was entered.
Question: What is the time for filing the Motion to Reopen?
Answer: A motion to reopen based on lack of proper notice can be filed at anytime. This also means that a motion may be filed even after a person has departed the United States.
Question: Will I get deported if I file the motion – or have a risk of deportation?
Answer: An automatic stay goes into effect when the motion is filed and remains in effect pending disposition of the motion by the immigration judge. In deportation cases, the stay remains in effect during the appeal to the Board of Immigration Appeals (BIA). To alert the court and the US Immigration and Customs Enforcement (ICE) to the applicability of the automatic stay provision, motions may indicate (in bold letters on the cover page and on the front page of the motion) that an automatic stay applies.
Question: What factors are considered in this type of motion?
Answer: Consideration of many different factors goes into this type of motion, especially that you did not have notice of the proceedings against you.
Question: What does proper notice mean?
Answer: Proper notice means that ICE must properly serve the respondent with a charging document at the outset of proceedings. The charging document is an Order to Show Cause (OSC) in deportation and exclusion proceedings and a Notice to Appear (NTA) in removal proceedings. Also, the court must properly serve the respondent with written notice of all hearings.
Question: What information must the government put in the notice?
Answer: The charging document must include: the nature of the proceedings, the legal authority for the proceedings, the acts/conduct alleged to be in violation of the law, the charges against the respondent, notification of the right to be represented by counsel, and the requirement that the respondent must provide a change of address or telephone number. The notice also must inform the respondent of the consequences of not providing a change of address (i.e., that the he or she may be ordered removed or deported in absentia). The notice of hearing, whether contained in the charging document or as a separate notice, must state the time and place of the proceedings and must inform the respondent of the consequences of failing to attend the hearing.
Question: What are proper methods of service?
Answer: There is a presumption of effective delivery where the evidence indicates that the notice was properly served. However, if the respondent can show that the notice was not served properly, the presumption of effective delivery should not apply and thus there is no need to rebut the presumption. The following are the service requirements: The nature of the requirements have changed over time. However, for Removal Proceedings Filed On or After April 1, 1997, the NTA and notice of hearing may be served in person or by mail, but there is no requirement that the NTA be mailed by certified mail. Regular mail is sufficient. Consequently, signatures of receipt are not required.
Question: How does the “Change of Address” requirement affect proper service and can the notice requirements be satisfied without actual receipt?
Answer: ICE may mail the NTA to the last address on file for the respondent. This may be the address that was included in an affirmative application that was filed with US United States Citizenship and Immigration Services (USCIS). However, respondents cannot be ordered removed or deported in absentia until they are warned (by receipt of the NTA or OSC) that they may be ordered removed or deported in absentia as a consequence of failing to inform the government of a change of address. Thus, individuals who failed to report a change of address and do not receive the NTA or OSC as a result, cannot be ordered removed in absentia.
Question: How can I prove that I did not receive notice even if the record shows that it was mailed to the correct address?
Answer: Some of this will depend when the deportation notice of your hearing was mailed. However, the presumption of effective service can be overcome if the respondent demonstrates non-delivery or improper delivery by the US Postal Service. Non-delivery or improper delivery can be established by submitting substantial and probative evidence, such as documentary evidence from the Postal Service and affidavits. For example, if there were ongoing problems with the mail delivery, you may want to provide details about the problems and affidavits from people with direct knowledge of the problem.In determining whether the respondent has overcome this presumption, the immigration judge must consider both circumstantial and corroborating evidence, and may consider a variety of factors, including (but not limited) to: Respondent’s affidavit; Affidavits from family members and other individuals who are knowledgeable about the relevant facts; Respondent’s actions upon learning about the in absentia order and whether he or she exercised due diligence in seeking redress; Any prior affirmative application for relief or application filed with USCIS or prima facie eligibility for relief (to help establish an incentive to appear); Previous attendance at immigration court hearings; and Other circumstances or evidence indicating possible non-receipt.Thus, there is a significant amount of work to be done on a Motion to Reopen a deportation order issued in absentia, but if done properly, it can work and proceedings can be reopened.
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Brian D. Lerner is an Immigration and Naturalization Attorney. He is a Certified Specialist in Immigration and Nationality Law as Certified by the State Bar of California, Board of Legal Specialization. Mr. Lerner is married to a Filipina and has been helping Filipinos immigrate to the United States for nearly 20 years. His firm represents clients in Deportation/Removal proceedings, does Waivers, Appeals, Naturalization, Adjustments, Criminal Relief, Citizenship, Consulate Processing, Work Permits, Investment Visas and all other areas of Immigration and Naturalization Law. You can go online to http://www.californiaimmigration.us/ and get a free consultation or call us at (562) 495-0554 for an in-person office consultation.
