Under the Immigration and Nationality Act (INA), immigration judges (IJs) conduct proceedings to determine whether aliens are inadmissible or deportable. The INA requires that the alien be given reasonable notice of the nature of the alleged grounds of removal charged by the government against him or her and of the time and place of the hearing. The alien must provide the government with a written record of his or her address and telephone number and any change of address or number.
Notice to Appear
Removal proceedings are initiated with a written "Notice to Appear" (NTA) that may be served in person or by mail if personal service is not practical so long as there is proof of attempted delivery to the last address provided by the alien or to the alien's attorney of record.
Authorization to Sign and Serve NTA
Even if the issuing officer is not authorized to sign and serve a NTA, the NTA is not defective so long as the issuing officer later obtains approval from an authorized officer. The INA does not require that the notice to appear be served by certified mail or that it be in Spanish or any other language.
Canceling an NTA
Under certain circumstances, the government has the authority to cancel an NTA when the NTA has not yet been filed with the immigration court and, thus, removal proceedings have not started. Removal proceedings may also be dismissed on motion by the government after the NTA is filed with the immigration court. A related concept is that of administrative closure. The administrative closure of a case is used to temporarily remove the case from an IJ's active hearing calendar. It is an administrative convenience for appropriate situations. For the judge to grant the motion for administrative closure, the government must not oppose it.
In Absentia Orders of Removal
If an alien fails to appear for the removal hearing, and if the government establishes by clear, unequivocal and convincing evidence that written notice was provided and that the alien is removable, then an IJ must enter an in absentia order of removal. The Department of Homeland Security need not demonstrate that the alien actually received notice in order to trigger an in absentia order.
An alien who fails to appear at a removal hearing is ineligible for most discretionary relief from removal for ten years. Additionally, an alien who fails or refuses to attend or remain in attendance at a removal hearing without reasonable cause is inadmissible for five years from departure or removal.
An entry of an in absentia order of removal is inappropriate when the record reflects that the alien did not receive the NTA and the notice of hearing it contains and, therefore, has never been notified of the initiation of removal proceedings or the alien's address obligations.
Nonreceipt of Notice
A removal order entered in absentia may be rescinded upon the filing of a motion to reopen that demonstrates that the alien did not receive proper notice of the hearing or meets the exceptional circumstances condition. Thus, the central issue no longer is whether the notice was properly mailed, but rather whether the alien actually received it.
There may be a presumption of receipt where a piece of mail is properly addressed and mailed in accordance with regular office procedures. In cases involving an in absentia order, a petition for judicial review is limited to the validity of the notice, the removability of the alien and the reasons for the failure to attend the hearing.