02 Jun New Relief for those who were deported in Absentia
By Attorney Chris Caday Lozano
There is a new law Niz-Chavez v. Garland decided by the US Supreme Court that will allow reopening of a case if the Notice to Appear sent to the Respondent do not have a hearing date and time at the first time it was mailed. A second notice will not cure the error.
If your Notice to Appear (NTA) does not specify a hearing date and time in the NTA itself then you have a second chance in court to apply for relief. The U.S. Supreme Court issued a decision on April 29, 2021, in Niz-Chavez v. Garland that could save thousands of immigrants from deportation. The Court held that the charging document for a removal proceeding, the Notice to Appear (NTA), is invalid if it does not specify the date and time of the hearing. The ruling does not qualify a second court notice about the hearing date. You must check the Notice to Appear you received if there is no date and time of hearing. If none it will invalidate the NTA.
Before this Court decision, you may file Motion to Reopen with the Immigration Court if you did not receive proper notice of the hearing. For example, if the NTA was mailed to an incorrect address, you may be successful in reopening your case if the failure to appear was not your fault. There is no filing fee for filing a Motion to Reopen based upon failure to receive proper notice.
When the NTA or Notice of Hearing is sent by regular mail to your last known address, there is a presumption that it was actually delivered there. It is your obligation to inform the court of any change of address within five days of moving. If you were notified of this obligation (which is contained in the NTA), and fail to do so, then miss a scheduled hearing, you may be faulted for failing to appear. To overcome the presumption of delivery, you have to submit any relevant evidence to show that you did not receive the NTA. Evidence can include your affidavit, affidavits from others who know about the situation, and proof of troubles with mail delivery at your residence. If applicable, you can also demonstrate that you have attended previous hearings and have pending applications that would indicate an incentive for you to appear for your hearing.
If you did not receive notice of your hearing, but your attorney of record did and failed to inform you of the hearing date, you may be able to reopen your case based upon ineffective assistance of counsel.
During the months of March and April 2021, we received approvals from USCIS four naturalization applications, three adjustment of status and two removal of conditional residence applications.
Note: This is not a legal advice and this article is for information purposes only. You should consult with an immigration attorney about the specifics of your case.
If you have immigration problems the Law Offices of Crispin C. Lozano can help you find a solution before your problem gets worse which could lead to deportation and family separation.
Chris Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers. He practices immigration law, bankruptcy and income tax preparation since June 1999. His contact phone is 1-877-456-9266, email: info@CCLlaw.net Website: www.crispinlozanolaw.com/