A client recently retained us to help him become a permanent resident because he had married a U.S. citizen. He last entered with a visa. We filed for adjustment of status but at the interview, the Immigration Service denied his application because, unknown to him, he had previously been ordered deported.
We filed a Motion to Reopen because he never received a Notice to Appear before an Immigration Court at a specific place and time. Originally his case had been started by the service of an Order to Show Cause (OSC) to explain why he should not be deported. After the original service of this OSC, he moved but he complied with Immigration regulations by properly sending the Immigration Service his changed address. Later the Immigration Service sent him a notice of the specific date and place for the hearing but by mistake sent it to his old address, notwithstanding that he had previously advised the Service of his new address. Since he never received the Notice, he consequently never attended the hearing and the Judge ordered his deportation.
Our Motion to Reopen was granted even though the 180 day time limit for a Motion to Reopen had elapsed. Inadequate notice is always a basis to reopen a deportation order without any time limitation.
HEARINGS IN ABSENTIA
Failure to appear at a removal hearing after proper notice will result in a Removal Order. A deported person is barred from applying for immigration relief for 10 years. Exceptional circumstances may excuse a failure to appear such as lack of proper oral instructions in the person’s own language as to the time and place of a prospective hearing and the consequences of failure to appear. Normally a person must move to rescind a Removal Order within 180 days and show exceptional circumstances such as failure to have received proper notice. The 180 day time limitation to file a Motion to Reopen may however be extended because of inadequate legal counsel. After a person learns of a Removal Order due to inadequate legal counsel, he/she may move to rescind the Order and although there is no time limitation to make this motion; however, due diligence requires the applicant to proceed with reasonable promptness after learning of the Removal Order. The Motion must be directed to the original Judge who made the Order.
The Immigration Service is no longer required to send Notice by registered mail; neither is personal service necessary. Regular mail to the person’s last address is sufficient. If a person fails to properly notify the Immigration Service of a change of address, then no written Notice is necessary. If the respondent is a minor, then service must be sent to the child’s custodian as well as to the child even if the minor is over 14.
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