A noncitizen in the United States may have an outstanding order of removal or deportation. Such an order of removal or deportation can cause enormous anguish and serve as an enormous impediment to establishing the type of life one would reasonably like to live. Such individuals with an outstanding order of removal or deportation may even be married to a U.S. citizen and have U.S citizen children. But for the order of removal or deportation, the foreign national may be even eligible to seek to apply for permanent residence and obtain a green card. Therefore, the ability to reopen the removal or deportation proceedings is of paramount importance to rescinding or vacating the order of deportation/removal.
There are various options which may be explored to reopen removal/deportation proceedings before the Immigration Court. The following is not an exhaustive list of grounds for reopening deportation/removal proceedings, but offers numerous options which may be applicable for seeking to reopen such proceedings.
Seeking To Reopen Proceedings Based On A Failure To Receive The Charging Document With Necessary Statutory Warnings & Advisals
An in absentia order of deportation/removal has been entered against a foreign national by the Immigration Judge if he or she failed to appear for a hearing before the Immigration Court.
A respondent (a noncitizen in deportation/removal proceedings), who was ordered removed in absentia, may seek on the basis of section 240(b)(5) of the Immigration and Nationality Act to have his or her in absentia order of removal rescinded because he or she did not receive proper notice in accordance with section 239 of the Act. According to section 240(b)(5)(C) of the Act, an in absentia order of removal should be rescinded if the motion to rescind is filed at any time and the alien can demonstrate that the failure to appear was due to a lack of proper notice in accordance with section 239 of the Act.
The Board of Immigration Appeals (BIA) in Matter of Anyelo, 25 I&N Dec. 337, 339 (BIA 2010), reaffirming its earlier holding in Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001), held that an Immigration Judge does not have the authority to order an alien's removal from the United States unless the alien has received (or can be charged with having received) the INA section 239(1)(F) statutory warnings and advisals contained in the charging document (Notice to Appear or Order to Show Cause) even if the alien failed to provide a change of address. Thus, if the respondent can prove he or she did not receive the charging document with the necessary statutory warnings and advisals, then he or she has a legal basis for seeking to have the in absentia order of removal rescinded by the Immigration Judge by filing the proper motion with the Immigration Court. It should be noted that such a motion should contain actual evidence of not having received the charging document beyond merely submitting self-serving affidavits. Consultation with a knowledgeable and seasoned attorney specializing in Immigration Law is necessary for the proper preparation and submission of such a motion.
Seeking To Overcome The Presumption Of The Delivery Of The Charging Document And/Or The Hearing Notice
Many scenarios, where a respondent did not receive the charging document, occur where the Department of Homeland Security mailed it to a prior address. However, there are cases where a charging document or hearing notice are mailed to a current address of the respondent, but the correspondence was not delivered to that address. The Board of Immigration Appeals– in Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995), held that where a charging document or Notice of Hearing is properly addressed and sent by regular mail according to normal office procedures, there is a presumption of delivery, but it is weaker than the presumption that applies to documents sent by certified mail. The BIA – in Matter of M-R-A, 24 I&N Dec. 665 (BIA 2008) – held the following:
"When an Immigration Judge adjudicates a respondent's motion to reopen to rescind an in absentia order of removal based on a claim that notice sent by regular to the most recent address provided was not received, all relevant evidence submitted to overcome the weaker presumption of delivery must be considered, including but not limited to factors such as affidavits from the respondent and other about whether notice was received, whether due diligence was exercised in seeking to redress the situation, any prior applications for relief that would indicate an incentive to appear, and the respondent's prior appearance at immigration proceedings, if applicable." In Matter of M-R-A, the Respondent overcame the presumption of delivery of a Notice of Hearing that was sent by regular mail where he submitted affidavits indicating that he did not receive the notice, had previously filed an asylum application, and exercised due diligence in promptly obtaining counsel and requesting reopening of the proceedings.
In Matter of C-R-C-, 24 I&N Dec. 677 (BIA 2008), in absentia removal proceedings were reopened by the BIA where the respondent overcame the presumption of delivery of a charging document (Notice to Appear) that was sent by regular mail by submitting an affidavit stating that he did not receive the notice and that he has continued to reside at the address to which it was sent, as well as other circumstantial evidence that he had an incentive to appear, and by exercising due diligence in promptly seeking to redress the situation by obtaining counsel and requesting the reopening of the proceedings.
Under section 240(b)(5) of the Immigration and Nationality Act, a respondent with an outstanding order of removal/deportation may also seek to reopen proceedings if he or she can demonstrate that the failure to appear for the hearing may be attributed to "exceptional circumstances." It is important to emphasize, however, that a motion based on "exceptional circumstances" must be filed within 180 days after the date of the order of removal. What constitutes an "exceptional circumstance" varies greatly and has been defined (sometimes differently) by numerous U.S. Courts of Appeals. It is important again to consult with an attorney specializing in Immigration Law to best assess whether there is a basis for demonstrating exceptional circumstances.
Ineffective Assistance Of Counsel And Equitable Tolling
In a number of cases, a foreign national may have an order of removal due to prejudice caused by ineffective assistance of counsel. The procedure for properly filing a motion to reopen based on ineffective assistance of counsel is also something to be explored with an attorney specializing in Immigration Law. If such a motion is filed after 180 days after the date of the order of removal, then a legal concept known as "equitable tolling" will be need to be acknowledged and accepted by the applicable Court receiving the motion based on ineffective assistance of counsel.
Joint Motion To Reopen
Under 8 C.F.R. Section 1003.1(d)(3)(iv), a Joint Motion to Reopen may be filed jointly by the noncitizen and the appropriate ICE Office of Chief Counsel. A motion to reopen filed jointly by the noncitizen and Office of Chief Counsel is not subject to time and number limitations. Typically the first step for such a joint motion is to file a proposed motion with the proper ICE Office of Chief Counsel respectfully seeking that the ICE Office of Chief Counsel join in such a motion. Consultation with a knowledgeable and experienced attorney specializing in Immigration Law is necessary for determining whether it is advisable to submit a proposed joint motion and whether there is a proper basis for submitting the proposed joint motion to the applicable the ICE Office of Chief Counsel. It is also important to properly ascertain, prior to filing a proposed joint motion to reopen, if the BIA or Immigration Court jurisdiction over the motion.
Daniel B. Sibirskyis Florida Bar Board Certified as an expert in Immigration & Nationality Law.
He is listed in The Best Lawyers in America®.
Daniel B. Sibirsky
Tel. (305) 381-9797