Failure by an alien to appear at his/her removal hearing will result in a deportation order by the immigration judge. An in absentia (in the absence) removal can be ordered if the alien is removable and if the government establishes that proper written notice was provided the respondent alien.
However, under two types of situations the alien can file a motion to reopen the proceedings and ask the judge to rescind the order. If the removal order is rescinded, the case is reopened and the alien may seek relief in the reopened proceedings.
Under the first scenario, the alien did not receive proper notice of the hearing. The notice refers to the charging document served the respondent at the beginning of the proceedings, called the Notice to Appear in removal proceedings. If the proceedings were brought under the old law, the document is called an Order to Show Cause.
In either case, the document must notify the respondent of the basis of government’s case against him. It must state the nature of the proceedings, the acts or conduct alleged to be in violation of the law, the charges against the respondent, and notice of the right to be represented by counsel.
It should inform the respondent of the requirement of notifying the court of a change in address or phone number, and warn him that he may be ordered deported in absentia if he fails to do so. The respondent must also be notified, whether in the charging document or in a separate notice, of the date, place and time of the hearing and the consequences of failing to attend the hearing.
The notice must be served properly. What is proper service depends on when the case was filed.
Since April 1, 1997, the notice to the respondent may be served either in person or by mail. The government needs only use regular mail, whereas before it must serve the notice by certified mail or registered mail, with a return receipt requested.
The NTA is mailed to the last address on file for the respondent. It could be the address in an application filed with the USCIS. If the respondent, who was informed of the requirement to report a change of address, does not do so and fails to appear at the hearing, he could be ordered removed in absentia.
If the respondent’s attorney was properly served but the attorney fails to inform the respondent of the hearing, the respondent is still considered to have been served. Service to the attorney is service to the respondent. However, the alien may argue his counsel’s ineffective assistance was the cause of his failure to appear and the removal order.
In a “no notice” case, the motion to reopen must be filed with the immigration court that has administrative control of the record of proceedings. The motion may be filed anytime, even after the person has departed the United States.
The second scenario that leads to an in absentia removal order involves exceptional circumstances which led to the respondent’s failure to appear at the hearing. The motion to reopen must generally be filed within 180 days of the entry of the order.
The respondent must show that he was prevented from appearing at the hearing due to exceptional circumstances. Illnesses or medical emergencies as well as ineffective assistance of counsel have been found to be exceptional circumstances. In any case, the respondent must provide sufficient documentation of the reasons for not attending the hearing.
A removal order has serious consequences, such as an inability to return to the United States for 5 years, and a bar from other forms of relief like adjustment of status, cancellation of removal and voluntary departure. Because of this, an alien ordered removed in absentia must consider the filing of a motion to reopen if failure to appear at the hearing was due to lack of notice or because of exceptional circumstances.