When the federal government wants to expel a non-U.S. citizen ("alien") from the United States through a deportation and removal action under the Immigration and Nationality Act ("I.N.A."), it in most cases conducts a hearing. There, the foreign-born person can present any defenses and evidence in order to convince the immigration judge ("IJ") that he or she has a legal right to stay in the United States.
However, there are times when the IJ can order that an alien be removed or deported in absentia, that is, without the alien being present at the hearing. If you're a non-U.S. citizen, you should understand the effect of an in absentia removal order, so as to act in your own best interests if it turns out you are unable to (or afraid to) attend one of your scheduled hearings.
Receiving a Notice to Appear in Immigration Court
Typically, the deportation and removal process begins with the Department of Homeland Security ("DHS") issuing a document called a "Notice to Appear" ("NTA") to the non-citizen. The NTA contains a number of things, including:
- a description of the reasons the U.S. government believes you should be removed from the U.S. (deported)
- an order that you appear at a specified immigration court on a specified day and time for your initial hearing
- notification that you must give the DHS your current address and telephone number, or any changes to them, and
- an explanation of the consequences of your failure to appear at the scheduled hearing.
It's also important to understand what happens at this first hearing in immigration court. In most cases, no final decision is made. It's simply an opportunity for you (or your lawyer, representing you) to state what defenses you believe you might have to deportation, and request that a full hearing be scheduled on another day. Many people win their cases after the full hearing.
If you don't yet have an attorney, you can ask the judge to reschedule the initial hearing, so that you have more time in which to find one. (But don't delay in finding an attorney; this could be key to finding out whether you have grounds upon which to argue that you should be allowed to remain in the United States.)
Consequences for Failure to Appear at a Removal Hearing
If you don't appear for your initial hearing, or indeed any hearing scheduled in immigration court, the IJ can order your deportation in absentia (in your absence). This depends, however, on the DHS being able to proves (by clear, unequivocal and convincing evidence) that:
- you are removable, and
- you were properly served with (mailed or otherwise given) the NTA.
If this happens, it basically means that an order of deportation will go into your file and you will be expected to leave the United States. If you are later caught by immigration enforcement authorities, they can use the outstanding order of deportation to escort you out of the U.S. immediately, without an opportunity for future hearings or legal proceedings.
In addition, failing to appear at a scheduled removal hearing will make you be ineligible for most discretionary forms of relief from removal for ten years from the date of the IJ's order. Such relief includes things like voluntary departure, cancellation of removal, adjustment of status, and change of status.
On top of all that, you'll be inadmissible to the U.S. (barred from entry) for at least five years from the date of your deportation.
What You Can Do About an In Absentia Order of Removal
A removal order entered in absentia can be rescinded, or cancelled, if you file a motion to reopen showing that:
- you did not receive proper notice of the hearing from DHS, or
- exceptional circumstances beyond your control kept you from appearing at the hearing, such as a serious illness suffered by you, your spouse, or your child.
If you are the one at fault in not receiving proper notice of the hearing, most likely because you failed to advise DHS and the court of your changes of address, this will not be sufficient to convince a judge to reopen your case. If the problem was that the NTA never arrived at your address, you could argue that the mail carrier was at fault; but you'd need to provide evidence that this has been an ongoing problem in your area (such as details and affidavits from neighbors or others who know of the problem).
If the fault was your attorney's, a new attorney might be able to help you file a motion to reopen alleging "ineffective assistance of counsel" (basically, that your previous attorney messed up).
What are "exceptional circumstances?" Having forgotten the hearing date is not one of them. In fact, real and everyday problems, such as slow traffic, are usually not considered sufficiently "exceptional" to excuse a person's absence at a removal hearing. (Though if it was an epic traffic jam that made the evening news, for example, it's probably worth a try.)
As for timing, under normal circumstances, a motion to reopen a removal order must be filed within 90 days after the final order was made. The rules are a bit different when the removal order is in absentia, however. You can file the motion to reopen:
- at any time (even after departure from the U.S.), if your motion is based on the failure to receive the NTA, or
- within 180 days of the IJ's order if the motion is based upon exceptional circumstances.
When a removal order was issued in absentia, a motion to reopen will automatically stop your deportation until the motion is decided by the IJ.
Questions for Your Attorney
- I forgot to attend my immigration court hearing. What should I do now?
- My last lawyer didn't tell me my hearing date. Can I file a motion to reopen my in absentia removal order on that basis?
- I think I have good grounds to reopen a removal order that was made in absentia. How do I file one, and where do I file it?
- Does it cost anything to file a motion to reopen an in absentia removal order?
- How long will it take for the IJ to decide on my motion to reopen?
- If my motion to reopen fails, will I deported immediately?