The Immigration and Nationality Act (INA) permits an immigration judge to order a person removed in absentia if the government establishes by clear, unequivocal and convincing evidence that proper written notice was provided and that the person is removable. There are two main situations where individuals who were ordered removed or deported in absentia can reopen their cases: (1) they did not receive notice of the hearing, and (2) they did not appear at their hearing because of exceptional circumstances.
An in absentia order may be rescinded by the immigration judge upon the filing of a motion to reopen if the respondent did not receive proper notice of the hearing.
Where to File the Motion to Reopen – The motion should be filed with the immigration court having administrative control over the record of proceedings. Typically, this will be the court where the in absentia order of removal or deportation was entered.
Time for Filing the Motion to Reopen – A motion to reopen based on lack of proper notice can be filed at anytime. This also means that a motion may be filed even after a person has departed the United States.
Filing Fees – There is no fee for a motion to reopen if the basis for the motion is lack of notice in removal or deportation proceedings.
Automatic Stay of Removal/Deportation – An automatic stay goes into effect when the motion is filed and remains in effect pending disposition of the motion by the immigration judge.
Consideration of the following questions will help a person to determine whether he or she received proper notice and then demonstrate to the immigration court that rescission of the in absentia order is warranted.
For more information on In Absentia Order of Removal Immigration Court,
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