In Absentia Removal Orders
Individuals who are in the United States without proper documentation or who have violated the terms of their visas may face deportation proceedings. These proceedings can be initiated by the government if the individual is unable to prove their legal status or if they have committed an immigration violation. One element of this process that can be particularly challenging for individuals is the concept of in absentia orders of removal. This blog post provides a basic overview of what in absentia orders of removal are, why they matter, how to avoid them, and what to do if you or a family member receives an in absentia order.
In absentia orders of removal are deportation orders issued by an immigration judge when the individual being deported fails to appear for their court hearing. Pursuant to U.S. immigration law, individuals who are facing deportation proceedings must attend all scheduled hearings unless they are granted permission to miss a hearing for a compelling reason, such as a medical emergency or the death of an immediate family member. If an individual fails to appear for a hearing and cannot provide a valid justification for their absence, the judge may order deportation in absentia, without ever hearing from the individual or their attorney.
The legal effect of an in absentia order of removal is significant. Once an individual is ordered deported in absentia, they are barred from seeking relief from deportation, such as asylum or cancellation of removal. Furthermore, if they are deported and later returned to the United States illegally, they can be subject to criminal prosecution and the permanent bar ground of inadmissibility. For individuals who are ordered deported in absentia, it can be challenging to stay in the United States lawfully, as they are barred from many forms of relief.
Fortunately, there are options available for individuals who are subject to in absentia orders of removal. One such option is filing a motion to reopen the deportation proceedings. Whenever possible, this should be done while the individual with the in absentia removal order is still in the United States. A motion to reopen is essentially a request to the immigration court to reexamine a case based on new evidence or changed circumstances. To file a motion to reopen based on an in absentia order of removal, an individual must demonstrate that they had a valid reason for missing the hearing and that they have a reasonably meritorious defense against deportation.
To show that they had a valid reason for missing the hearing, an individual must generally demonstrate that they were not able to attend due to circumstances beyond their control. Examples of valid reasons may include severe illness or hospitalization, lack of notice of the hearing, or being in custody or detention at the time of the hearing. Once an individual has demonstrated a valid reason for missing the hearing, they must then show that they have a valid defense against deportation. This may include evidence of family ties or hardship in the United States, evidence of good moral character, or evidence that they are eligible for asylum or other forms of relief.
You should be aware that the laws surrounding what constitutes proper notice for in absentia order purposes has been shifting substantially since 2020. In some cases, even if you were aware of your removal hearing when it was missed, you may still be able to challenge the in absentia order successfully if the Notice to Appear you were given is missing key information, such as the date, time, or place of proceedings even if this informtion was later provided to you by the immigration court.
It is essential to understand the obligation that you update your address with ICE and the immigration court immediately after moving addresses. Failing to provide a viable mailing address or to update a previous address can make reopening an in absentia order extremely difficult even if you did not actually know about your hearing.
If you or a family member has learned they have an in absentia order of removal, reach out to an experienced immigration attorney immediately. Failure to act with diligence can lead to the denial of a motion to reopen under certain circumstances.
