Many foreign nationals have an outstanding in absentia order of removal or deportation. Such an order of removal is entered by the Immigration Judge when the foreign national fails to appear for a hearing before the Immigration Court. There is a legal mechanism under the Immigration & Nationality Act which is available to rescind the in absentia order of removal and reopen proceedings under the right circumstances. According to section 240(b)(5)(C) of the Immigration & Nationality Act, an in absentia order of removal should be rescinded if the motion to rescind/reopen is filed at any time and the alien can demonstrate that the failure to appear was due to a lack of proper notice in accordance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 Immigration & Nationality Act.
A competent Immigration Attorney can request the Record of Proceeding (the Court File at the Immigration Court) for the foreign national and seek to evaluate if under the law the individual did not receive proper notice of his or her removal/deportation proceedings. If there is a sound legal basis for proving the foreign national did not receive notice of proceedings in accordance with requirements under the Immigration & Nationality Act (and published opinions issued by the Board of Immigration Appeals which interpret the Immigration & Nationality Act), then the Immigration Judge should grant a motion to rescind the in absentia order of removal and reopen proceedings. Once removal proceedings are reopened, a foreign national may seek to present an application or applications for relief before the Immigration Court.