When may an In-Absentia Order of Removal be reopened?

29 Jun When may an In-Absentia Order of Removal be reopened?

By Atty. Crispin Caday Lozano

Q: Can a person ordered removed in absentia have his case reopened?

A: The law allows two main situations where individuals who were ordered removed or deported in absentia can reopen their cases: (1) they did not receive notice of the hearing, and (2) they did not appear at their hearing because of exceptional circumstances. 

Q: Where must the Motion to Reopen be filed?

A: 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. 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. There is no fee for a motion to reopen if the basis for the motion is lack of notice in removal or deportation proceedings.

Q: What happens after the person files a Motion to Reopen?

A: 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 or Board). The BIA takes the position that for removal cases, the automatic stay does not remain in effect during the appeal process. To alert the court and the U.S. 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.

Q: What does Proper Notice mean?

1. 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.

Q: What information must the government put in the notice?

A: 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 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.

Q: What are the service requirements?

A: The following are the service requirements:

1. Deportation Cases Filed Between June 13, 1992 and April 1, 1997 — If the OSC was filed between June 13, 1992 and April 1, 1997, the OSC and all notices of hearing must be served in person or by certified mail to the respondent or the attorney of record, if any. The OSC also must be mailed return receipt requested. Thus, in order to accomplish service of the OSC, the certified mail receipt must be signed by the respondent or a responsible person at the respondent’s address. However, a signature is not required to effect service of a subsequent notice of hearing.
2. Removal Proceedings Filed On or After April 1, 1997 — Like the OSC, 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.

Note:   This is not a legal advice.

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