Last updated on May 14th, 2019
There are two main situations where you can rescind an in absentia Order of Removal and have your case reopened. First, if you did not receive notice of the hearing. Second, because you did not appear due to exceptional circumstances.
Even if the reason for your absence falls under one of these categories, fighting against an Order of Removal is an uphill battle. In order to avoid deportation, you need to understand the process in full.
What is an Order of Removal?
Immigration judges file orders of removal against people who lose their deportation cases. In this way, you’ll receive an Order of Removal in two situations:
- The immigration judge decided not to grant you any form of relief after your removal hearing.
- You failed to attend your hearing, and the judge ordered you removed in absentia (“in your absence”).
Essentially, an Order of Removal is normally the first step in the deportation process. If you were present at your hearing, you’ll have 30 days to appeal this order. However, in the case of an in absentia ruling, this order is final. This means that you can only reopen your case under very specific circumstances.
Put another way, if a judge issues a Final Order of Removal against you, U.S. Immigration and Customs Enforcement (ICE) can take you into custody and deport you without allowing you to go to court again.
When the court issues a removal order in absentia, they are saying that you have forfeited your chance to defend yourself in court, and therefore the government will move forward with removal proceedings.
The only way to stop this process is by showing that you had a very good reason for not attending your hearing.
How to Fight an In Absentia Order of Removal
Before you do anything else, you should get a lawyer. This is not a process you can, or should, approach by yourself.
Having a removal order against you is a serious matter that you need to resolve quickly and efficiently. An experienced immigration attorney will understand the charges, and can help you negotiate a new hearing.
As we stated previously, the only way to fight an in absentia Order of Removal is by filing to reopen your case in immigration court. In order to do so, you need to prove one of two things.
Either (1) that you didn’t receive notice of the hearing, or (2) that your circumstances were so exceptional you had to miss the hearing.
Filing to Reopen Because You Didn’t Receive Notice of the Hearing
This defense is common, however, it is also very difficult to prove in court. The reason for this is because the government assumes that it is your responsibility to notify them of any changes in address.
Since the court will send your Notice to Appear to your last known address, they can legally presume that you got it. For this reason, you only have 5 days to notify the court of an address change.
Outside of the defense of “I moved,” there are actually several defenses available to you. If you can convince the judge that you didn’t receive the Notice because of any one of them, they might choose to reopen your case at their own discretion.
There was a Typo in the Address – The first thing you should do is request a copy of the Notice to Appear. If there is a clerical error on it, you might have a valid defense in court. If your street name is misspelled, your street number is wrong, or there are any other errors, you can prove that there is a reason you didn’t receive your NTA.
The Court sent the Notice to the Wrong Address – Even if you notify the court of your address change, there’s a chance they may still send the notice to your old address. If this happens, you should find proof of the fact you notified them of the address change, then use that proof to show that your absence was not your fault.
Your Mail is Unreliable – While an uncommon defense, you might be able to convince the judge that you’ve had trouble with your mail. However, you should only do so if you have real, tangible evidence of this occurring. If your mail truck drove into a lake or your local sorting center caught on fire, you may be able to convince the judge to reopen your case.
Filing to Reopen Because of Exceptional Circumstances
Immigration judges can reopen cases at their own discretion. For this reason, a judge may consider reopening your case if you can prove certain exceptional circumstances kept you from your hearing.
Death or Serious Illness of an Immediate Family Member – If you had to take care of an immediate family emergency, a judge may consider reopening your case. For example, taking a parent, spouse, or child to the emergency room might count as an exceptional circumstance.
You were Detained by Circumstances Outside Your Control – If you arrive late to your hearing, you will not be able to enter the courtroom. For this reason, if you can prove that you made a valid effort to make your court date, but were detained by circumstances outside of your control, a judge might consider reopening your case.
For example, if your car breaks down on the highway you might be able to petition for exceptional circumstances. However, you’ll want to collect evidence of your emergency, and you should still show up to court as soon as possible.
In some cases, a judge might just reschedule your case for later in the day. Otherwise, you’ll want proof that you managed to get to court, but couldn’t enter because court was already in session.
Finally, you should note that you must file your Motion to Reopen within 180 days of the date of your scheduled hearing. However, you should file this motion immediately, as ICE can deport you at any time until you file this document.
Even after you’ve received an in absentia Order of Removal, you still may be able to avoid deportation. Receiving an Order of Removal is very serious; therefore, it’s crucial that you hire an experienced immigration attorney.
If you can prove that you didn’t receive the Notice to Appear in court, or that there were exceptional circumstances that prevented you from attending your hearing, you can file a Motion to Reopen.
In any event, an attorney can help you navigate the deportation process, giving you peace of mind in an incredibly trying time.