Orders of Removal Following Failure to Appear for Legal Proceedings in Immigration Court
If a foreign national does not appear for a removal hearing as required by the immigration court, the immigration judge can order them to be removed in absentia. This means that they can be deported from the U.S., even though they never appeared in court, as long as they received written notice of the hearing. An order of removal in absentia is very powerful. When ICE officers find you, you will be taken into custody and deported from the U.S. without any hearing before a judge. You will be ineligible for certain types of immigration relief for the next 10 years. These include cancellation of removal and voluntary departure, which are often sought by foreign nationals.
Sometimes a foreign national can challenge an order of removal in absentia by filing a motion to reopen their removal case. This involves showing a lack of notice or showing exceptional circumstances. In other situations, they might be able to get discretionary relief from ICE if they do not have a basis to reopen their case. Handling this process without an attorney can be risky, so you should seek counsel before moving forward.
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Filing a Motion to Reopen Based on Lack of Notice
A motion to reopen your case asks the judge to restart the proceedings and schedule a new hearing. If the motion succeeds, you can pursue any form of immigration relief for which you are eligible. Filing a motion to reopen results in an automatic stay of deportation until the judge has ruled on the motion. This will allow you to remain in the U.S. while the motion is pending.
Lack of Notice
A foreign national may be able to argue that their case should be reopened because they did not receive notice of a hearing due to no fault of their own.
You can file a motion to reopen based on a lack of notice of the hearing at any time and at no cost. In some cases, a foreign national never received their Notice to Appear because the government sent it to the wrong address, or because they had been taken into custody before the government sent the NTA. The government can use a presumption that the NTA was delivered to your last known address if it was sent by regular mail. In other words, you will have the burden of proof to show that you did not actually receive it. You might be able to provide an affidavit, as well as affidavits from other people who know that you did not receive the NTA or know that mail is often not delivered properly to your address. If this is not the first hearing in your case, you may have a stronger argument if you can show that you attended previous hearings. If your attorney received notice but did not tell you about the hearing, you can potentially reopen your case based on ineffective assistance of counsel.
As stated on the NTA, a foreign national must inform the court of any move within five days. Failing to comply with this rule may mean that you cannot file a motion to reopen based on a lack of notice if you received the NTA but did not receive notice of a subsequent hearing. You should check the NTA to make sure that it correctly states your address.
Filing a Motion to Reopen Based on Exceptional Circumstances
You can file a motion to reopen within 180 days of the removal order if you did not appear at a hearing because of exceptional circumstances. These might include the serious illness or death of an immediate relative. Or these might arise when a foreign national does not appear at the hearing on time because of issues outside their control, such as a delay in public transportation, and the judge refuses to hold the hearing later in the day. Filing a motion to reopen based on exceptional circumstances involves paying a filing fee, although a fee waiver may be available.
You will need to attach supporting evidence with your motion. It should establish not only why you missed the hearing but also why you did not inform the court that you would not be able to appear.
Discretionary Relief from ICE
If you are not eligible for either type of motion to reopen, you can ask ICE for a stay of removal or deferred action. Both of these types of relief are discretionary, which means that ICE will not be required to grant them in any situation. The order of removal remains in effect if you get discretionary relief, but ICE will refrain from removing you during the time provided by the stay or grant of deferred action. These are precarious forms of relief because ICE can terminate them at its discretion.
The Order of Removal Remains in Effect
Neither a stay of removal nor deferred action erases the removal order from the foreign national’s record. Instead, ICE agrees not to act on the removal order during the specified period of time.
Deferred action generally involves showing that there are compelling humanitarian reasons for allowing you to stay in the U.S. for a limited period. This might involve a serious illness that requires receiving treatment in the U.S. Deferred action lasts for no longer than two years at a time but can be renewed indefinitely. You can get a work permit if you receive deferred action.
A stay of removal also can be renewed indefinitely, although it lasts for no longer than one year at a time. You would need to submit Form I-246, which is an Application for a Stay of Deportation or Removal, to the Enforcement and Removal Operations office in your area. The application should contain evidence showing why you need to stay in the U.S., as well as your passport, birth certificate, and arrest record. As with deferred action, you can get a work permit. However, you may need to meet periodically with an ICE officer if ICE issues an order of supervision in your case.