Cohen Eliminates 16-Year-Old Absentia Deportation Order
In Absentia Deportation Order Reopened in NY
What is Being Ordered Deported in Absentia?
The Immigration Courts have the authority to go forward on a deportation hearing when the respondent (the immigration court equivalent of a “defendant”) fails to appear for the hearing. When a respondent “no shows” for his or her deportation hearing, the Immigration Judge will generally make a final decision on case based on the evidence submitted by the counsel representing Immigration and Customs Enforcement (ICE). If the evidence submitted by ICE establishes deportability, then the Immigration Court will order the respondent removed “in absentia.”
The Immigration Court generally presumes that there was effective service of the charging document if it is established to have been mailed to the respondent’s address. The presumption of effective delivery however may in some instances be overcome by evidence that the charging document was not in fact received.
Attorney Cohen Makes a Federal Case Out of Immigration’s Failure to Provide Notice of Hearing
In 2005 a woman sought to reopen a deportation order that had been issued in 1991 in her absence. She had not appeared for the 1991 hearing because she had never received notice of the deportation hearing. The Immigration Court denied her motion to reopen the proceedings. She appealed the decision to the Board of Immigration Appeals (“BIA”). In 2006 the BIA denied her appeal. It also subsequently denied her motions to reconsider. I was retained to represent her in a Federal Court appeal of the BIA’s denial of her motions to reconsider. I appealed her case pro hac vice to the U.S. Court of Appeals for the 2nd Circuit, in New York, the jurisdiction where the in absentia deportation hearing originally occurred.
Success in 2nd Circuit Petition for Review of the In Absentia Order of Deportation
The basis of the federal circuit court appeal (called a “petition for review”) was that the Board of Immigration Appeals unfairly ignored evidence of non-receipt, including multiple affidavits that had been submitted in support of a finding that my client had not in fact received notice of the hearing. The Court of Appeals agreed, ruling that in upholding the order of deportation, the Board of Immigration Appeals had abused its discretion. The in absentia order of deportation was vacated (eliminated), and the case was remanded to the Immigration Court. I subsequently was able to change venue to the Miami Immigration Court and then obtain an order from the Immigration Court terminating the deportation proceedings.
Call Attorney Cohen
If you have any questions, or you need immigration court representation, please feel free to call my law office in Hallandale Beach (954 457-1941) or Fort Myers (239 931-6558) to schedule a consultation with me.
Note: the foregoing article is for general informational purposes only. It is not legal advice.