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NEW HOPE FOR PEOPLE WITH "IN ABSENTIA" DEPORTATION
ORDERS, WHERE THEIR CONSULTANT RECEIVED ALL THEIR MAILS
by Michael J. Gurfinkel, Esq.
In the early 1990's, tens of thousands of Filipinos
were lured into filing for political asylum in order to get temporary
working permits. Many of these cases were prepared and handled
by immigration consultants or paralegals, who knowingly filed
fraudulent asylum applications (making up stories of how the alien
was being persecuted in the Philippines) to earn some fast bucks
for themselves, while making promises of "greener pastures"
to their victims.
Many of these Filipinos were eventually ordered
deported, and many of them never knew of the existence of their
deportation order, or never even knew that they had been ordered
to appear for deportation hearings. This is because all their
mails relating to their asylum cases were sent to their immigration
consultants' address, and the consultants purposely failed to
notify them of the date of their hearing.
Recently, the Ninth Circuit Court of Appeals issued
an opinion which could offer hope to people in such circumstances,
where they were kept in the dark by their immigration consultants.
In that case, the Ninth Circuit ordered the Board of Immigration
Appeals ("BIA") to reopen the case of a Filipina, who
had applied for political asylum, but was eventually ordered deported
in absentia by the Immigration Judge. The Filipina failed to attend
her deportation hearing, because her immigration consultant (who
fixed her asylum papers) never informed her of the hearing date.
In that decision, the Ninth Circuit Court of Appeals
(which is one level below the U.S. Supreme Court) ruled that the
misconduct of this consultant (and another non-attorney she hired)
constituted "exceptional circumstances" excusing the
Filipina's failure to appear at her deportation hearing.
The Filipina had entered the United States in September
1989 as a visitor and overstayed. In 1992, she submitted an application
for political asylum, prepared by an immigration consultant, who
also accompanied her to the asylum interview. Her asylum application
was denied on Sept. 29, 1993 and she was issued an "Order
to Show Cause", which required her to attend a deportation
hearing.
However, the notice of her hearing and deportation
order were all sent to the address of the immigration consultant
(because that was the address written by the consultant in the
Filipina's asylum application). Even though the Filipina kept
asking the consultant about the status of her case, the consultant
never told her that her application had been denied and that she
had been ordered to appear before an immigration judge for her
deportation hearing.
The Filipina later learned that she had been ordered
deported from an acquaintance. When she confronted the consultant,
he offered to write a "motion to reopen" the case, wherein
the consultant wrote that the Filipina "did not know"
of the original hearings. However, the consultant, did not disclose
that he failed to notify the Filipina of the hearing.
The Immigration Judge denied the motion to reopen
filed by the consultant, because the judge believed that her non-appearance
was the result of her failure to notify the INS of her change
of address.
After her motion to reopen was denied, the Filipina's cousin referred
her to a Las Vegas man, who also was not a lawyer. This person
had her case transferred to Las Vegas, and filed an appeal with
the Board of Immigration Appeals. The BIA then denied the appeal,
saying that the time limit for filing an appeal had expired. The
BIA instructed the Filipina to report for deportation.
Finally, the Filipina decided to go to a licensed
attorney, and only then, she claimed, did she become aware of
the "legal misconduct" of the two immigration consultants.
Through her attorney, the Filipina claimed that the legal misconduct
of both immigration consultants constituted "exceptional
circumstances" that would justify the reopening of her deportation
proceedings.
The Ninth Circuit Court ruled that the 180-day statute
of limitations to reopen an order of deportation does not
apply where the alien misses the deadline because of the "deceptive
actions" by a person or persons posing as an attorney.
While the Ninth Circuit Court did not lift the
deportation order (because it was not the issue at hand), it remanded
(sent back) the case to the Board of Immigration Appeals for the
reopening of her deportation proceedings, thereby giving her another
chance to prove that she was entitled to an immigration benefit,
and remain in the U.S.
This case is important because many Filipinos filed
for political asylum through consultants, who made false promises,
while hiding the truth. Many of these Filipinos were deceived
into filing political asylum applications, and were later issued
in absentia deportation orders under the same or similar circumstances,
where the consultant had all the mail sent to the consultant's
address, and not the alien's.
The Ninth Circuit Court decision now entitles many
such aliens to seek legal relief, and reopen their deportation
cases, which can save thousands of Filipinos from outright deportation.
Federal authorities are now knocking at doors, looking for aliens
with outstanding deportation orders, who are then taken to the
airport and summarily deported after only a few days.
If you have been issued a deportation order under
similar circumstances, I suggest you consult with a reputable
attorney who can analyze your situation, determine if you are
entitled to legal relief, and help you file the necessary papers
with the court.
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