It can begin as innocently as going to the mailbox. Lying there is a letter with a return address from the Executive Office for Immigration Review. Inside is a document titled Notice To Appear. Getting a Notice to Appear in Immigration Court is scary. It means that the government has begun a process to try to remove a non-citizen from the United States. It is not surprising that some people respond by ignoring the notice and not going to court. However, that does not make the problem go away. In fact, it usually makes it worse.
If a person fails to appear at a removal hearing after proper notice is sent out, that person will be ordered removed if the government establishes by clear, unequivocal and convincing evidence that written notice of the date, time and place of the hearing was provided to the alien and that the alien is removable.
The notice must be properly addressed. It must include the correct apartment number and zip code and be properly addressed to the person named in the notice to appear. Where the alien is a minor, the notice must be served upon the responsible adult in whose custody the alien is placed. If the alien is over 14 years old, he must also be served. In the view of some courts, notice to counsel is deemed sufficient even if the lawyer does not convey this information on to the alien. Notice to an adult relative is also considered service.
If the government can provide proof that the notice was properly served and that the person named is removable, the court can hold a hearing and make a removal order in absentia. In absentia means in the personís absence. Proof of proper service can consist of showing that the notice was mailed, by regular mail, to the alienís last known address. If the alien did not get the notice because he failed to notify the government of his current address, his failure to appear is not excused.
A person who has a final order entered against her in absentia after receiving oral notice is barred from most forms of relief, including cancellation of removal, adjustment of status, change of status and voluntary departure for 10 years. The bar only applies where the failure to appear is not due to exceptional circumstances and the person received oral notice in her own language or in a language she understands regarding the time and place of the hearing and the consequences for failing to appear. Exceptional circumstances include events such as serious illness and death in the family.
In absentia orders are not appealable. An in absentia order may only be rescinded by a motion to reopen. The filing of the motion stays the deportation order until the judge rules on it. If the alien did not receive notice of the hearing for reasons other than his own fault, the motion can be filed at any time. If the alien received notice of the hearing, the motion must be filed within 180 days of the date of the order. This 180 day period can be tolled (held) if the failure to appear was the result of ineffective assistance of counsel. However, the tolling is not indefinite. The alien must act with due diligence after learning of the existence of the order.
The 9th Circuit has held that a judge can not issue an in absentia order where the alien arrived at court while the judge was still in the courtroom, even if the alien arrived late. The court distinguished between failing to appear and appearing tardy. Clearly, however, it is risky to arrive late and hope that the judge will still be on the bench. A miscalculation could result in an in absentia order.
A person who has an in absentia order is subject to being removed from the United States. Sometimes, a person learns about the in absentia order when Immigration and Customs Enforcement (ICE) takes them into custody. Anyone who has ever filed an application for an immigration benefit may be at risk. Denials of applications are often followed by a notice to appear. Anyone who suspects that proceedings may have been instituted against them should consult a knowledgeable and experienced immigration lawyer.
Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.
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