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NEW HOPE FOR ALIENS WHO WERE ORDERED DEPORTED "IN ABSENTIA"
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
Years ago, I applied for political asylum. Since
that time, I have moved several times, and didn't keep track of
what was happening with my asylum case.
I am now married to a U.S. citizen, who wants to
petition me, but I just found out that a deportation order was
entered against me years ago. (I never received any notice from
INS that I was being deported.) I am being told that because of
that deportation order, I won't be able to adjust status in the
U.S., even though I married a U.S. citizen.
Also, a friend of mine (who was sponsored by his
employer through Labor Certification), also has in absentia deportation
order against him. Is there any hope for us to obtain green cards
in the U.S., despite these in absentia deportation orders on our
records?
Very truly yours,
N.V.
Dear N.V.:
Many people are shocked to find out that they were
ordered deported in absentia (in their absence) or have an order
of deportation on their record. Because they moved, they may have
never received any notice from INS about their deportation/removal
proceeding, because the notice was returned to INS.
Recently, the Board of Immigration Appeals (BIA)
decided a case which may offer new hope for many people who had
been ordered deported in absentia, but never received any notice
of the hearing. In that case, the BIA held that if an alien never
received the Notice to Appear (NTA), then the Immigration Judge
cannot enter an in absentia order of deportation.
The facts were that the alien entered the United
States in 1982. Two months later, the alien filed a Request
for Asylum. In 1991, the alien submitted an Alien Address
Report Card (Form I-104), updating her address with the INS.
In 1997, the INS mailed an Appointment Notice
to the alien for her asylum interview. That Notice was mailed
to the address provided by the alien way back in 1991. The alien
did not appear for her scheduled asylum interview.
In July 1997, the INS sent to the alien,
by certified mail, an NTA scheduling her removal/deportation hearing
for September 30, 1997, again to the same address provided
by the alien in 1991. However, INS' files clearly reflected that
the alien did not receive the Notice to Appear, because
the NTA was returned to the INS, undelivered by the Postal Service.
Since the alien did not receive notice of the hearing (because
it was returned to the INS by the Post Office), she did not appear
for her removal/deportation hearing. At the hearing, the INS argued
that the alien should be deported in absentia, because the alien
did receive proper notice of the proceedings, since the INS "attempted
delivery to the last address provided by the alien". The
INS also argued that it was the alien's responsibility to always
update her address with the INS, such that as long as the NTA
was sent to the last address provided by the alien, then the alien
is considered to have received proper notice of the hearing. The
Immigration Judge ruled that there was no proper service of the
notice and terminated the proceedings. The INS appealed.
The BIA disagreed with the INS, sustained the Immigration
Judge's ruling, and held that it was improper to enter an in absentia
order of deportation, where the record reflects that the alien
never received a copy of the Notice to Appear:
"When an alien fails to appear at removal
proceedings for which Notice of the Hearing was served
by mail, an in absentia order may only be entered where
the alien has received, or can be charged with receiving,
a Notice to Appear (Form I-862) informing the alien of
the statutory address obligations associated with removal
proceedings and of the consequences of failing to provide
a current address . . ."
The BIA pointed out that the warning to the alien
(about providing a current address) is contained in the Notice
to Appear itself, along with a warning that the failure to provide
the current address could result in an in absentia order. However,
if the alien never received the NTA, then the alien would
not be aware of the warning or requirement to provide a current
address, and the dire consequences (entry of an in absentia order).
Due process requires that the alien be provided with notice of
proceedings and an opportunity to be heard. If the alien never
received notice, an in absentia order would violate the alien's
due process rights.
Moreover, the INS' file itself showed that the NTA
was returned to the INS by the Postal Service as "undelivered".
Thus, it was clear that the alien never received notice of the
requirement to provide a current address and/or that an in absentia
order could be entered against her. Consequently, entry of an
in absentia order would be improper.
In your case, if you never received a notice of
your deportation hearing (i.e. the notice was returned to the
INS), then, under this recent BIA case, you may not have received
"proper notice" and entry of an in absentia order would
have been improper.
In addition, there is no time limit within
which to bring a motion to reopen an in absentia order if an alien
demonstrates that he or she did not receive proper notice.
I would strongly advise anyone who had been ordered
deported in absentia, but never received notice of the hearing
and/or legal requirement to provide INS with a current address,
to seek the advice of a reputable attorney, who can analyze your
case, and determine if you have a strong legal basis to have your
case reopened and status adjusted through some other avenue (i.e.
through marriage, family petition, or Labor Certification).
However, eligibility for relief truly hinges on
the fact that the alien never received the Notice. If you did
receive the Notice, and INS' file shows proof that you (or someone
at your address) did receive it, but you were just too afraid
to go to the hearing, then this new BIA case may not be applicable
to you.
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