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Eliminating an “In Absentia” Order of Removal

The “In Absentia” Order of Removal
By Mitchell J. Cohen


The United States Supreme Court has recognized that deportation visits a great hardship on the individual in that it deprives him of the right to stay and live and work in this land of freedom. The United States’ deportation laws are complicated and often cruel. An Immigration Judge has the authority to order an individual deported from the United States. On the other hand, in some circumstances, the Immigration Judge may provide immigration benefits to foreigners who appear in front of the Immigration Court. Clearly, the Immigration Judge has the power to dramatically alter people’s lives. On account of the foregoing, it is of the utmost importance to make certain that you have an experienced immigration attorney at your side from the very beginning of the process.

Unfortunately, it is surprisingly easy to be ordered deported. In fact, one of the easiest ways to be ordered deported is to not show up to your scheduled immigration court hearing as scheduled. In that circumstance, the Immigration Judge will generally not hesitate to issue an order deporting you in your absence (this is called an “in absentia order of removal”).

Sometimes an individual will fail to receive proper notification of the time, date and place of the Immigration Court hearing, through no fault of his own. In other cases, people miss their immigration court hearing because of exceptional circumstances such as severe illness. The immigration courts are generally reluctant to reopen cases. The circumstances surrounding an individual’s failure to appear in immigration court must be carefully and skillfully presented to the Immigration Court in a well written and well researched legal motion, called a motion to reopen.

Many people (including even some novice attorneys) make the mistake of simply writing a letter to the Immigration Judge, believing that their written excuse will be sufficient basis for the Immigration Court to rescind the order of deportation and reopen the case. A motion to reopen is a technical legal document, that must be supported by documentary evidence. Generally, the Immigration Judge will only consider one motion to reopen a removal proceeding. A motion to reopen a case that is premised on lack of proper notice of the hearing can be filed at any time – in contrast to a motion to reopen a case based on failure to appear because of exceptional circumstances which may only be filed within 180 days of the date of the Immigration Court’s removal order. In some circumstances, there is a filing fee required for the motion to be considered.

In my years of litigating immigration court cases, I have seen many lawyers make tragic errors in their motions to reopen cases where their clients were ordered removed from the United States for failing to appear. One mistake that I have seen on many occasions is the failure of the lawyer to include a sworn and notarized affidavit in support of the motion. Another problem I have seen is when the attorney files a motion with the Board of Immigration Appeals instead of with the Immigration Judge who issued the order. Sometimes the attorney does not take the time or make the effort to present a well-written and well-reasoned motion. I have seen motions to reopen that are no longer than a single paragraph. These deficient motions to reopen are generally doomed to failure from the outset.

For people who failed to attend their immigration court hearings because of exceptional circumstances such as severe illness, there are strict requirements that must be satisfied in order to succeed in a motion to reopen the case and eliminate the deportation order. Often attorneys make the mistake of not submitting a physician’s letter in support of the motion; or if they do, the letter is terse and uninformative. Ideally, a doctor’s letter should describe in detail the medical emergency which prevented you from appearing for your Immigration Court hearing.
It is critical to attempt to reopen a case in which there has been a final order of removal. Once a final order of removal is issued, the order may generally be executed at any time, meaning arrest, detention and deportation without any further hearings. I have seen husbands, wives, mothers, fathers, and son and daughters in immigration custody because of orders of deportation that were issued in their absence. Often it is only when they are arrested by immigration that they first realize that they had been ordered deported in their absence.

It is critical that individuals be aware of their immigration court cases and to do everything necessary to avoid being ordered deported. If you are not a U.S. citizen, the law generally requires that you notify the Department of Homeland Security of all your address changes on Form AR-11. For individuals who have Immigration Court cases pending, there is an additional change of address form they must file with the Immigration Court (Form EOIR-33C). The Immigration Court has a toll-free number for people to check on their immigration court case status. The telephone number is 1–800–898-7180. Sometimes what you do not know can hurt you. This is certainly true of in absentia orders of removal. If you have been ordered deported make sure you have an attorney experienced in immigration law to light your path.

This article does not constitute legal advice and does not substitute for the advice of an immigration lawyer familiar with the facts of your individual case. If you have a question, please call the Law Offices of Mitchell J. Cohen, PA to schedule a  a consultation: (954) 457-1941 (Hallandale Beach Office) or (239) 931-6558 (Fort Myers Office).   www.greencardcohen.com.