201602091133532315By Attorneys Anda Kwong & Nancy E. Miller

For some, the path to the American Dream does not go smoothly.  One may have been fighting for status for years only to hear the immigration judge order him removed.   Is it over?  Is there any hope?

Adverse decisions can be appealed to the Board of Immigrations Appeals (Board) provided that the noncitizen or her attorney reserved the right to appeal at the end of the proceedings and provided that the Notice of Appeal is timely received by the Board in Falls Church, Virginia. Valid appeals must be based on an assertion that the judge made an incorrect interpretation of the law or misapplied the law to the facts in the case. If the Board upholds the immigration judge’s decision, that decision may be appealed to the U.S. Circuit Court of Appeals.

If a Notice of Appeal is not timely filed, the removal order becomes final. It cannot be appealed to the Board and cannot be reviewed by the Court of Appeals. However, if new evidence becomes available, or the law changes, or new relief becomes available, one may file a motion to reopen the proceedings. Here, too, specific time limits apply for when the motion can be filed.

One who does not attend his removal proceedings can be ordered removed in his absence (in absentia). One who is ordered removed in absentia becomes ineligible for voluntary departure, cancellation of removal, and adjustment of status for ten years after the date of the Order. At some point, Immigration and Customs Enforcement (ICE) may seek to enforce the order by taking the non-citizen into custody and physically removing them from the United States.

In absentia orders cannot be appealed. However, they can be fought by means of a motion to reopen. This is true whether the alien had notice of the hearing or not.

The Notice of Hearing is mailed to the alien’s last known address. If the immigrant did not receive the Notice to Appear that specified the court date, the question is whether the lack of notice is due to the alien’s failure to keep the court advised of the current address. Those in court proceedings are required to notify the court of any change of address within five days of moving. One who fails to do so cannot then claim lack of notice. However, if the court mistakenly sends the notice to the wrong address, lack of notice can be claimed as a valid reason for failure to attend the proceeding. This can result in the revocation of the in absentia order.

If one did receive notice of the hearing but failed to attend for exceptional circumstances beyond her control, she may file a motion to reopen within 180 days of the date of the removal order. An exceptional circumstance includes a serious illness to oneself or an immediate relative or the death of an immediate relative, but nothing less compelling. One who did not receive oral warnings of the consequences of failing to appear may file to reopen proceedings. If the case is reopened, the removal order is revoked and the case proceeds on its merits.

If the immigration judge denies the motion to reopen, that decision can be appealed to the Board. If that appeal is denied, a stay of the execution of the removal order or deferred action may be sought from ICE. This relief is discretionary and requires a showing of why the alien is deserving of such consideration. So, in addition to providing proof of the need to remain here, persuasive evidence must be submitted to show that positive factors outweigh negative ones. Length of time in the United States, family ties here and in the home country, hardship to U.S. citizen and permanent resident family members, criminal history, prior immigration violations and other factors are all taken into consideration by ICE when considering the request. If it is granted, the alien may apply for work authorization.

Judicial errors of law may also be attacked by means of a motion to reconsider. However, choosing that avenue may result in forfeiting the right to appeal the erroneous decision.

The one definite is that ignoring a removal order does not make it go away. It must be dealt with and the sooner the better. The Board and the courts are reluctant to vacate the existing order if the alien has known about the order for a long time and done nothing about it.  Therefore, as soon as one receives a removal order or as soon as he learns he has one, he should consult with an experienced and knowledgeable immigration attorney.

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