As difficult as it is to describe, in any meaningful way, the disappearing rabbit trick of marriage fraud and green card transition, there is the question that frequently arises from clients: what do I do about an absentia order of removal? Failure to go to an immigration court proceeding for any reason causes you to fail because it violates your rights. In this article, let’s discuss the consequences of the in absentia order of removal on your immigration history and the steps to take to get rid of an in absentia order of removal.
Understanding the Impact of an In Absentia Order of Removal
This is a form of removal order issued by an Immigration Judge (IJ) stating that the foreigner failed to appear at a scheduled removal hearing. Its consequences can impact your immigration status and any remaining hope you may have for residence in the US. Here’s what you need to know:
Immediate Risk of Detention and Deportation
If Immigration and Customs Enforcement (ICE) officers encounter you and you have an in absentia order of removal, they can arrest you and deport you without allowing you to appeal to an IJ first. This means your attendance can result in faster yet unfavorable outcomes that are away from the hearing process.
Long-term Consequences
Other than the short-term threat of being detained and deported, an in absentia order of removal has a long-term implication. It declares you a forbidden entrant to the United States for ten years from the time the order was provided. At this time you cannot apply for voluntary departure, cancellation of removals, and changes or adjustments in your immigration status by The Immigration and Nationality Act § 212(a)(9).
The above demonstrates that an in absentia order of removal carries significant impacts. Hence, it’s crucial to understand what you’ll face if you receive such an order of removal. I’d like to explain what you can do in this regard to ask such a question effectively.
Exploring Your Options
Filing a Motion to Reopen Removal Proceedings
You can file a Motion to Reopen a removal proceeding where you have been ordered removed in absentia under several special circumstances. Therefore regaining a new hearing in the immigration court puts you in a position to go for any qualified form of relief. You may consider this option if:
You Did Not Receive the Notice to Appear (NTA)
Possibly, the best reason likely to warrant a Motion to Reopen is where you want to show that you never saw or received the NTA, which gives the date and time of the hearing.
Exceptional Circumstances Led to Your Absence
However, if you have a very viable reason that you were unable to attend your court hearing for instance due to serious sickness or death of a close family member then you may ask for a Motion to Reopen. You must file this motion no later than 180 days after the scheduled hearing, depending on the circumstances of your case.
When you filed this Motion to Reopen your immigration matter, a legal provision enacted a stay on your deportation. This provision prevents authorities from deporting you out of the country until the Immigration Judge rejects your Motion. This relief offers you temporary respite while your case undergoes review, granting you the reprieve you sought.
Addressing Failure to Receive Notice
If you received a Notice of a Hearing before the Immigration Court but didn’t get proper notification, you can file a Motion to Reopen without any time restrictions. This situation may happen if someone sent the NTA to the wrong address or if you were in federal or state custody during the hearing. Importantly, you won’t incur any filing fee for such a motion as long as you base it on inadequate notice.
The best way to counteract it is through availing evidence to show that you never received the NTA. This evidence may include your sworn statement about the matter, sworn statements from other witnesses that support your story, and evidence of problems you experienced with mail delivery at your residence. If so, you can also present your previous experience in attending hearings, and several pending applications showing a commitment to attending hearings.
Moreover, if your attorney notified you of the hearing but failed to inform you about it, you might be able to argue that your lawyer offered ineffective legal representation, necessitating the reopening of the case.
Reopening Due to Exceptional Circumstances
When you fail to attend the hearing, it will lead to case dismissal but you may look for ways to reopen your removal proceedings where there were special circumstances like a family emergency or serious sickness. This option requires you to file the Motion to Reopen within 180 days from the date of the removal order.
When filing under special circumstances, you must pay a filing fee of $110 for each petition as of 2023. You can apply for the fee waiver using a form known as EOIR-26A if you are financially unable to pay the fee. You might attach other documents to your letter, such as an affection letter or sworn statements that offer legal explanations about events that caused your absence and why you didn’t inform the court beforehand.
Challenging an In Absentia Order
If you’re certain that you received an in absentia Order of Removal in which you were not involved, make sure to record or write down the details. For instance, if you were late for the hearing because of a car breakdown or on the other hand, you could not find a bus to get to the hearing in time, and thus, you missed the hearing, try to gather all possible documentation to back up your tardiness.
Applying for Discretionary Relief From ICE
If filing the Motion to Reopen with the Immigration Court is not possible, there are still other ways for a mandatory respondent to seek discretionary relief with the ICE. Two primary forms of discretionary relief include:
Stay of Removal
An STP entails that you are allowed to live in the U. S for some time given that ICE will not use requisites to deport you during that period. You can renew this option multiple times, but it comes with some conditions. Renewing it means you can extend it as many times as necessary, but you’ll encounter some obstacles each time you renew.
For this, one needs to file Form I-246 for Request for to Stay of Removal on the official website of Immigration and Customs Enforcement or ICE. Usually, individuals are expected to fill out this form and submit it in person at an Enforcement and Removal operations location.
Deferred Action
Sometimes, on compassionate grounds, authorities refer to the act of temporarily halting deportation cases as deferred action or prosecutorial discretion. Individuals can request this relief for a period of up to two years, and they may also apply for an extension.
For instance, if a person is suffering from a critical illness that can only be treated in the U. S, one may be eligible for a deferred action. In the same way that applying for a stay of removal you may apply for work authorization when applying for deferred action.
Seek Legal Counsel
Immigration law, coupled with an in absentia order of removal complicates the process and anyone faced with the challenge is likely to commit mistakes. One should not venture into this process alone but rather seek the services of an immigration lawyer who can help in navigating this uncertain course which could lead to deportation.
To sum up, the court order of removal in absentia meets severe consequences, however, it has ways to combat it. Even when filing for a Motion to Reopen or searching for discretionary relief on the part of ICE, knowing your stand and seeking professional immigration help is the next step to undertake in dealing with this issue.
In immigration law, it’s crucial to actively argue against an in absentia order of removal with due diligence.
Take charge of your situation by actively seeking out and understanding the legal protections and options available to you, and then use this knowledge to proactively navigate this challenging phase of your life, advocating for yourself to achieve the best possible outcome that you deserve.
