In Absentia Deportation & Removal Proceedings

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Generally, when the federal government wants to expel a non-U.S. citizen ("alien") from the country through a deportation and removal action under the Immigration and Nationality Act ("INA"), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), there is a hearing where the alien can present evidence and try to convince the immigration judge ("IJ") to let him or her stay in the U.S.

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 know some things about in absentia deportation and removal proceedings.

The Beginning Is Critical

Typically, the deportation and removal process begins with the DHS issuing a "Notice to Appear" ("NTA") to an alien. The NTA contains a number of things, including:

  • An order that you appear at a specified immigration court on a specified day and time
  • Notification that you must give the DHS your current address and telephone number, or any changes to them
  • An explanation of the consequences of your failure to appear at the hearing

If you don't appear for that scheduled hearing, the IJ can order your deportation in absentia if the DHS clearly proves that:

  • You're removable, and
  • You were served with the NTA

If you fail to appear at the removal hearing, you'll be ineligible for most discretionary relief from removal for 10 years. Such relief includes things like adjustment to status and asylum. In addition, if you fail or refuse to attend or remain in attendance at a removal hearing without "reasonable cause," you'll be inadmissible for 5 years from the date of your deportation.

An entry of an in absentia order of removal is invalid when it can be shown that you did not receive the NTA and the notice of hearing it contains.

Getting Around an In Absentia Order

A removal order entered in absentia can be rescinded, or cancelled, if you file a motion to reopen that shows that:

  • You did not receive proper notice of the hearing, or
  • There were exceptional circumstances that kept you from appearing at the hearing, such as a serious illness suffered by you, or your spouse or your child

Under normal circumstances, a motion to reopen a removal action must be filed within 90 days after the final removal order was made. The rules are a bit different when the removal order is in absentia. The motion to reopen an in absentia removal order can be filed:

  • At any time if your motion is based on the failure to receive the NTA, or
  • Within 180 days from the order of removal if the motion is based upon exceptional circumstances

Again, the filing of a motion to reopen normally won't automatically stop the enforcement of an order for removal, that is, you can be deported before your motion is heard and decided. But, the rule is different when the removal order is in absentia: a motion to reopen such a removal order will automatically stop your deportation until the motion is decided by the IJ.

Questions for Your Attorney

  • 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 my motion to reopen?
  • If my motion to reopen fails, will I deported immediately?
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