Seguritan US Immigration Articles

Lawful Admission Required for Adjustment of Status

One of the requirements for adjustment of status is the alien’s lawful admission to the United States. This means that the alien must have been inspected, admitted or paroled into the US.The Immigration Nationality Act (INA) defines the terms “admitted” and “admission” as “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

For foreign nationals who enter the US by air or sea and who are processed by the U.S. Customs and Border Protection (CBP), lawful admission is generally easier to demonstrate as they are normally issued an I-94 Form upon entry.

Since April 2013, the CBP no longer issued the paper I-94 and created an electronic I-94 Form based on the foreign national’s travel documents. The electronic Form I-94 may be printed by accessing the CBP’s website. Aside from the I-94, the CBP office also makes an annotated admission stamp on the foreign national’s passport which may also serve as proof of lawful admission.

However, for those travelling by land, there have been instances when border officials simply “wave through” foreign nationals who enter the US by car without asking any questions. Was there lawful admission in this case?

In a 1980 case, the BIA held that an alien who was “waved through” and who did not make a false claim to citizenship was “inspected” and “admitted” to the US for purposes of adjustment of status. In that case, the alien was a passenger in a car entering the US. The border official waved them through after questioning the driver. She was not asked any question nor did she volunteer any information.

The BIA reasoned that the noncitizen was “inspected” when she physically presented herself for questioning and did not make a false claim to citizenship and she was “admitted” when the officer permitted her to enter the United States.

In 1996, Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) and amended the INA to define the meaning of “admitted” as being “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

However, the Board reaffirmed its earlier decision. The Board held that “lawful entry” did not require that the entry be substantially regular; it only had to be procedurally regular. In this case, the noncitizen was also a passenger of a car crossing the US-Mexico border. She was not asked any questions and was waved through by the border official. It held that, just like in an earlier case, the admission was procedurally regular and met the definition of “admission” under the INA.

Thus, if a noncitizen does not make false claim to citizenship, is not asked any questions, does not volunteer any information, and is waved through by a border official, he has been “admitted” even if he did not have valid entry documents.

The noncitizen does not gain lawful status upon entry in the United States and is still removable for being “inadmissible at the time of entry”. However, since the noncitizen was “admitted”, he is eligible for immigration benefits, such as adjustment of status in the US, if the noncitizen later on marries a US citizen, subject to other requirements under the law.

Where primary proof of lawful admission is not available such as in the case of the noncitizen who was waved through, secondary evidence may be submitted. Secondary evidence may include affidavits regarding admission.

A request for evidence (RFE) is expected when secondary evidence of lawful admission is submitted. A timely response to the RFE must be submitted even if the requested documents have already been initially submitted.

Obama Urged to Stop Deportations

Immigration advocates are appealing to President Obama to exercise his executive power and stop the deportation of thousands of undocumented immigrants in the country while Congress is at a standstill on immigration reform. At present, over 1,000 undocumented immigrants are being deported per day. Last year, more than 400,000 were deported.

President Obama changed his policy on deportation last year and deferred the deportation of thousands of young people who were illegally brought into the country as children. Over 455,000 undocumented young people have so far been granted deferred action.

This time, however, President Obama, in an interview, indicated that he cannot change his policy on enforcement nor expand the coverage of the deferment program. He also told progressive and labor leaders in a meeting that he cannot ease enforcement because his priority is to push for the passage of the immigration reform bill. According to an advocate, the goal is “getting the immigration reform passed, and that solves the problem – not starting a whole controversy as to whether he is easing up.”

Meantime, the President instructed the U.S. Immigration and Customs Enforcement (ICE) division to focus on the deportation of felons and multiple offenders. Advocates say that the ICE and the Department of Homeland Security continue to deport undocumented workers who are without any criminal record and are separated from their families. Last month, however, ICE issued a directive advising agents “to keep enforcement actions from unnecessarily impacting parents and primary caregivers.”

The President’s refusal to stop mass deportations has prompted immigration advocates to launch campaigns to demonstrate their frustration and disappointment. Seven undocumented workers affiliated with the National Day Laborer Organizing Network recently held a protest, handcuffing themselves at the gates of the White House and carrying signs with the words, “Mr. President Stop Deportations.”

Chris Newman, legal director of the same organization behind the protest expressed his concern saying, “There’s a clear contradiction in the president’s position right now. He’s saying either the House Republican’s will come around on the path to citizenship, or I’ll be forced to keep deporting people. And that’s an untenable position.” Advocates maintain that the president has the power to stop deportations and are determined to keep challenging him.

Meanwhile, advocates are also intensifying their campaigns to pressure Congress to pass the immigration reform bill. Thousands of people are expected to join a rally and a concert at the doorsteps of Congress on October 8.

The House Republicans’ refusal to bring the immigration reform bill to the floor has increased the frustration of the immigrant community. Although many are “losing heart” with the bill being sidelined for many reasons, immigration advocates will not stop pushing for the overhaul of nation’s immigration system. As Jaime Contreras of the Service Employees International Union pointed out, “It’s time for Republican leaders to start standing up to the extremists and let them know that inaction is not an option for us. We will not stop until we win this fight.”

Deportations Decline Following Policy Change

The first quarter of the 2012 fiscal year saw the lowest proportion of deportations in immigration cases in at least two decades. At the same time, the proportion of aliens allowed to remain in the U.S. also increased.

According to a recent report, immigration court records for 53,064 completed cases showed that only about half or 50.8% of the individuals with deportation cases were removed. Compared to the preceding quarter, the period of October to December 2011 saw a decrease in the percentage of aliens ordered removed by more than 5 percentage points.

Not only were there fewer deportations in proportion to the number of cases. Substantially more cases were also closed without a deportation or voluntary departure order, which essentially means that the respondent alien was allowed to stay in the United States. According to the study, in 18,266 cases (34.4%), the court granted relief to the alien, terminated the case, or administratively closed the proceedings.

This is significant because it indicates that more than one in every three aliens in deportation were allowed to remain in the U.S., which is considerably greater than the previous quarter’s 29.9% and is the highest ever recorded.

More striking was the jump in the percentage of aliens granted relief or found to be legally entitled to stay in the U.S. Whereas in the previous quarter the court granted relief only in 13.1% of the cases, for October-December 2011 relief was granted in almost 18% of the cases.

These notable changes could be the result of a number of policy changes implemented by the Obama administration last year.

It will be recalled that on June 17, 2011, the Immigration and Customs Enforcement issued a Memorandum directing its personnel to exercise prosecutorial discretion with the aim of conserving the agency’s resources for cases deemed to be enforcement priorities, such as those involving criminal aliens and suspected terrorists.

Then in November 2011, the DHS announced a two-month long review of incoming as well as pending removal cases to determine which cases should be accelerated or prioritized and which ones should be administratively closed using the guidelines on prosecutorial discretion. The DHS also launched a scenario-based training for ICE officers and attorneys as well as pilot programs to review the dockets in immigration courts in Denver and Baltimore.

The report was released by the Transactional Records Access Clearinghouse (TRAC), a research group based at Syracuse University.

It comes at about the same time that a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ordered the Department of Justice in five separate immigration cases to advise the court by March 19, 2012 “whether the government intends to exercise prosecutorial discretion”. It’s as if the court has taken to itself the initiative of prioritizing the use of government resources by focusing on more important cases before it.

Out of the 53,064 cases analyzed by TRAC, 82.1% or 43,591 cases involved the violation of immigration rules only, i.e., those who entered the country illegally, overstayed a valid visa, or violated procedural requirements. In the remainder of the cases the charges against the alien included more serious offenses, such as involvement in or conviction for a crime.

It seems that the data confirms that the increase in the proportion of aliens allowed to stay – those who were granted relief or whose cases were terminated or administratively closed – pertained to aliens who were charged only with a violation of immigration rules.

On the other hand, among aliens charged with criminal violations, there was a slight increase in the percentage of those ordered removed or granted voluntary departure.

The study also found however that, in spite of the increases in case closure or termination, for the first quarter of fiscal year 2012, the average processing time went up from 311 days on average in the last fiscal year to 375 days.

Deportation Remedies

Being placed under removal proceedings is probably one of the hardest things that any immigrant might have to experience in the United States. However, even at this stage several types of relief are available to prevent an individual’s deportation.

Some remedies, for example, adjustment of status, cancellation of removal, or asylum and withholding of removal, either grant or offer a path to permanent residence. If the respondent alien is not eligible for these forms of relief, he should certainly consider other options before he loses all hope and gives up.

Deferred action is one of the remedies available to an alien under deportation which is granted for humanitarian reasons. It is a form of relief granted not by the judge but in the exercise of prosecutorial discretion by the district director with the approval of the regional commissioner.

The alien must demonstrate that his removal is not a priority of the government. Some of the factors to be considered include the likelihood of ultimately removing the alien; the presence of sympathetic factors; likelihood of a large amount of adverse publicity because of those sympathetic factors; the alien’s continued presence is desired by law enforcement for an ongoing investigation or review; and whether the alien is a member of a class that is a high enforcement priority.

A grant of deferred action means that the government would not take steps to remove the alien from the United States. He becomes eligible for employment authorization in the meantime. However, deferred action is only a temporary stay of removal and does not confer any positive immigration status.

Another type of relief that may be available is voluntary departure. This allows an alien who would otherwise be deported to leave the U.S. at his own expense but within the time period ordered by the judge, which can be as long as 120 days if requested at the beginning of the proceedings.

An alien who is ordered removed may be barred from reentering the U.S. for at least several years, but one who voluntarily departs is not subject to the penalties of removal. Voluntary departure may be requested before or at the master calendar hearing, after the individual hearing, or at the conclusion of the proceedings.

If the alien has a matter pending with the USCIS, typically an I-130, I-140 or I-360 petition, the judge may order an administrative closure of the removal proceedings. This is to allow the USCIS to adjudicate the petition since the judge does not have jurisdiction over it. If the petition is approved by USCIS, the alien may apply for permanent resident status before the immigration judge.

A little-known type of relief, perhaps because it is rarely resorted to, is the private bill. It involves convincing a U.S. Senator or Representative to sponsor a bill providing one with permanent residence, and thereafter to have that bill passed in both houses of Congress and then signed by the President. As one can imagine, getting a private bill passed is nothing short of a miracle, but miracles do happen: in the 108th Congress, three private bills were passed.

The rules of both houses require the alien to establish particularly compelling circumstances and hardship. Even the mere sponsorship of a bill by a member of Congress already gives the alien relief. This is what happened to one of our clients years ago. The pendency of the private bill enabled him to remain in the U.S. until he obtained his employment-based green card.

Deferred enforced departure (DED) is a relief given to nationals of certain countries as determined by the President in his power to conduct foreign relations. If an alien is covered and is eligible for a DED, his removal is temporarily stayed and he may get employment authorization and advance parole.

Guidelines for Deportation Review Finally Issued

Immigration authorities are reviewing new and pending deportation cases to find out which cases should be prioritized and which ones should be administratively closed.

As announced on November 17, 2011, the Department of Homeland Security has launched a review of incoming as well as pending removal cases, currently numbering about 300,000.

This implements the June 17 memorandum directing ICE (Immigration and Customs Enforcement) personnel to prioritize the removal of criminals and public safety risks and focus the use of the government’s limited resources.

It is also a timely response to mounting criticism that the policy in the June 17 memo had been implemented unevenly among ICE offices all over the country. A recent report by the American Immigration Lawyers Association and the American Immigration Council showed that many ICE agents and attorneys did not consider the memo binding absent further guidelines.

The November 17 memo and accompanying guidelines outlined a more formal review process and listed criteria to help ICE attorneys determine whether to accelerate the case or to favorably exercise prosecutorial discretion.

Cases involving aliens who committed serious crimes and are national security risks will generally be accelerated. Examples include suspected terrorists, those convicted of a felony and certain misdemeanors, as well as those who committed immigration violations such as fraud and illegal entry.

On the other hand, eight criteria are enumerated so ICE attorneys can more easily know if discretion should be exercised favorably. These include service in the armed forces, presence in the U.S. for at least 5 years coupled with a high school or college education, presence for at least 10 years for those over 65 years old, and having a serious mental or physical condition.

The new guidance only covers clear-cut cases and does not replace or supersede the factors in the June 17 memo. ICE attorneys are still required to consider the broader and more numerous factors in the June 17 memo in determining which cases to close or continue.

The initial stage of the review ends on January 13, 2012. A second stage is reported to begin on December 4, 2011, where pilot projects in selected immigration courts will closely examine the docket and focus on cases involving aliens arrested for deportation.

The review process is expected to relieve clogged immigration court dockets and preserve government resources for the removal of the most egregious of offenders.

Anyone with a pending deportation case who believes that he/she would be affected by the guidelines should seek the advice of a competent immigration attorney.

It must be remembered that the new policy is not an amnesty program. There is no right to a favorable exercise of discretion and, even if favorably exercised, prosecutorial discretion does not give the alien legal status. Any alien who is unlawfully present in the United States may be placed under removal proceedings.

However, the new guidelines make it clear that the full extent of the law should not be imposed with equal force on convicted felons and DREAM Act students, the sick and elderly with many years of residence and strong community ties, and other low priority immigrants. Unless comprehensive immigration reform is legislated by Congress, positive executive action such as this helps address the clamor for a humane immigration policy.

New Policy of Easing Deportation Unevenly Applied

When the Immigration and Customs Enforcement (ICE) in a memo last June instructed its personnel to avoid the deportation of “low priority” or non-criminal aliens, immigration advocates and immigrant communities all over the country welcomed it as a humane and sensible approach to immigration enforcement.

The Morton Memorandum, named after ICE Director John Morton, ordered its personnel to exercise “prosecutorial discretion” when handling cases of aliens who have no criminal history and are not risks to national security or public safety. It called on them to regularly exercise their discretion at any time during the immigration process in order to prioritize the use of the agency’s limited resources.

The memo listed at least 19 factors to be considered by ICE personnel when making enforcement decisions. These include lengthy residence in the U.S., pursuit of U.S. education, community ties, and having a U.S. citizen (USC) or lawful permanent resident (LPR) relative.

However, ICE offices apparently have not been following the memo in the past five months since it came into effect.

A survey of immigration practitioners by the American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) shows that implementation of the new policy has been sporadic at best.

For instance, in New York, removal proceedings were terminated for an alien who had been present since childhood and educated in the U.S. and had strong family and community ties.

On the other hand, relief was denied to a long-time LPR who had two misdemeanors from a long time ago but whose case involved many positive factors, including being a victim of domestic violence or serious crime, having a spouse with a severe illness, and being a primary caretaker of a sick or disabled minor relative.

In California, surveyed attorneys reported little to no change in practice since June. In one case involving an LPR with an abandonment charge, termination of removal proceedings was denied in spite of the equities of the case. The LPR had no criminal history or only minor offenses and had a USC/LPR relative; no negative factors were present.

Many ICE officers and attorneys were reported as having said that there is no change in policy or that things were “business as usual” until they get further guidance. For example, in the Honolulu ICE office, it was said that prosecutorial discretion is denied unless there are life threatening circumstances.

The findings also reveal that the standards are sometimes applied inconsistently or interpreted narrowly. In Florida, for example, an ICE attorney said that a prosecutorial discretion request would be considered at the beginning of the case and not at any other stage of the proceedings. An ICE agent in Seattle reportedly said that discretion to release an alien would be exercised only when a detention center is full.

Despite the clarity of the guidelines in the memo, there is evidently a gap between the leadership that issued the policy and the rank and file tasked to carry out the policy in practice. The AILA and AIC pressed the DHS and ICE in particular to issue additional guidance and hands-on training to its personnel.

In order to give effect to a policy not only approved at the executive level but in fact supported by President Obama, ICE agents and attorneys need to understand that it is their obligation to exercise discretion in accordance with the memo.

With Deportations on the Rise, Here are Some Pointers

The government deported a record-high 396,906 individuals in the last fiscal year which ended in September 2011. Ninety-percent of the removed aliens fall under a priority category such as criminal offenders and repeat immigration violators.

More than half (55%) of the removals involved aliens convicted of felonies or misdemeanors, which is almost 90% more than the number of criminals removed since fiscal year 2008 and is the so far highest percentage in a decade.

This record is the latest of three years of increased immigration enforcement under President Obama. It reflects the government’s “focus on sensible immigration” by prioritizing the removal of criminal aliens, repeat immigration law violators and recent border crossers.

In June of this year, U.S. Immigration and Customs Enforcement (ICE) Director John Morton issued guidelines on the use of prosecutorial discretion by ICE employees and attorneys and called on them to use the agency’s limited resources on aliens who pose a threat to public safety or national security.

While these latest numbers affirm the government’s policy of prioritizing criminal aliens, it must be remembered that anyone who is without lawful immigration status can still be placed under removal proceedings.

Contrary to popular belief, unless subject to expedited removal an alien is generally entitled to court proceedings before being removed. Removal proceedings typically start with the service of a notice to appear (NTA) upon the alien.

The NTA specifies, among other things, the alleged immigration violation, the charge against the alien and the specific provision/s of the law alleged to have been violated, and the time and place of the hearing. An NTA may be served in person or by mail. As non-citizens are required to notify the USCIS of any change of address within 10 days of the change, in many cases the ICE may simply mail the NTA to the alien’s last addresses and it would be considered valid service.

If served with an NTA, the alien is strongly advised to consult an immigration lawyer because being placed under removal proceedings is a serious matter. An immigration lawyer can tell him whether proceedings can be terminated because of a problem with the NTA on its face or in the way that it was served. The lawyer can analyze the facts of the case, explain what options may be available, and if the alien would be eligible for a relief from removal. Reliefs include voluntary departure, asylum, adjustment of status and cancellation of removal.

The alien must attend the scheduled master hearing, which is a preliminary hearing where the charges are read and the alien is asked to admit or contest the allegations and whether he intends to seek relief from removal. An individual hearing is scheduled if the case will be heard on the merits.

The alien may be represented by an attorney at the master and individual hearings. However, unless provided pro bono or by a non-profit organization, any legal representation will be at the alien’s own cost because there is no right to government-appointed counsel in immigration cases.

The alien must keep the immigration court updated of any change of address and must attend his hearings. If he fails to notify the court of an address change, and because he did not receive correspondence he fails to attend a hearing, the proceedings may continue and may result in the alien being ordered removed in absentia.

New Policy is Not Amnesty but Fewer Will Be Deported

The Obama administration announced last week a new immigration policy that will allow many undocumented immigrants facing deportation to remain in the United States.

In a letter addressed to a group of U.S. senators, including DREAM Act sponsor Sen. Richard J. Durbin (D-Illinois), Department of Homeland Security Secretary Janet S. Napolitano unveiled a policy that will identify low-priority removal cases that should be considered for prosecutorial discretion following previously-issued DHS guidelines on prosecutorial discretion.

Secretary Napolitano stated that an inter-agency working group would conduct a case-by-case review of all individuals currently in removal proceedings to ensure that DHS resources are focused on the government’s highest enforcement priorities.

This policy entails the review of about 300,000 pending court cases. DHS will determine whether each case is a “low priority” or “high priority” case. A case may be considered “low priority” if it meets the factors outlined in the Morton Memo dated June 17, 2011.

“High priority” cases involve aliens who pose risks to the national security or public safety, such as convicted felons. It has been said that almost 80% of deportations involved non-criminals and aliens involved in lower level offenses.

Under the new policy, “low priority” cases may be administratively closed. This means that although an alien is still legally under a removal proceeding, the case is not active and no action will be taken, including future hearings.

The Obama administration has also stated that individuals whose cases are administratively closed would be eligible to apply for a work permit or employment authorization document (EAD).

In an effort to help the public avoid immigration scams, the American Immigration Lawyers Association (AILA), of which this author is a member, has issued an advisory to warn the public that the new policy is not an amnesty program.

Many undocumented immigrants may be tempted to present themselves to authorities in the hope of obtaining work authorization and legal status under the policy. This is a mistake and should not be done without the advice of a qualified immigration lawyer.

Administrative closure is only a temporary suspension of a case, and an EAD only gives temporary permission to work. Neither the administrative closure nor EAD gives legal status.

The AILA warns that there is no safe way of turning oneself in to immigration authorities and that there are no guarantees that a particular case would be considered “low priority” as to be administratively closed. Only immigration authorities can make a finding that a case is “low priority”, and anyone who promises that a case would be found “low priority”, whether a friend, relative, paralegal, notario or even a lawyer, should not be believed.

There have been at least two reported cases of cancelled deportations on account of this brand new policy: a Florida man who came to the U.S. to escape violent gangs in Mexico, and a lesbian from Mexico who is in a same-sex marriage with a U.S. citizen. The fact remains, however, that there are still no details on how the policy will be implemented.

Only cases already pending in court are included in the review and there is still no guidance on whether aliens not yet placed under removal proceedings would benefit from this new policy at all.

Apart from stating that the review will be done on a case-by-case basis and with a view to the totality of circumstances of each case, the DHS has not released guidelines on how the review process will be carried out or any indication on its timeframe for finishing the review of all 300,000 cases.

Furthermore, guidelines on the application procedure and eligibility standard for the EAD have not been issued. In other words, it does not necessarily mean that a “low priority” alien would be eligible for a work permit.

Lauded by immigration advocates, the new deportation policy is expected to benefit thousands of immigrants, including students who would have qualified for relief under the Dream Act had it been passed by Congress, as well as gay and lesbian couples where a spouse faces deportation because their marriage is denied federal recognition.

Alien Must Be Informed of Free Legal Services

A court has recently ruled that a removal or deportation order is invalid if the Immigration Judge fails to inform the alien of the availability of free legal services.

The alien in this case had pleaded guilty to conspiracy to possess and distribute 50 grams or more of crack cocaine and was sentenced to 168 months behind bar.

While in prison, he was served with a Notice To Appear (NTA) before an Immigration Judge due to his aggravated felony conviction and controlled substance conviction.

The first NTA did not indicate the time and date of the hearing but referred to a list of organizations and attorneys providing free legal advice. The list however was not in the administrative record.

The second notice indicated the hearing date, time and place but did not check the box for the “Legal Services List.”

When the alien appeared at the hearing held at the county prison, the Immigration Judge asked him if he was seeking an attorney to represent him but he replied that he didn’t have the money to hire one. The Judge did not tell him of the availability of free legal services nor did he ask him if he had received the legal services list. He was eventually ordered to be deported due to the aggravated felony conviction.

The alien appealed the deportation order to the Board of Immigration Appeals but was unsuccessful. So he filed a petition for review before the Court of Appeals for the third circuit.

At the hearing, the alien through his appointed counsel, contended that the Notice To Appear was deficient thus denying him an opportunity to be heard. He also argued that the failure of the Immigration Judge to inform him of the availability of free legal services deprived him of his constitutional right to due process and his statutory right to be represented by an attorney.

He cited a regulation issued by the Attorney General which stated that in a removal proceeding, the Immigration Judge is required “to advice the respondent of the availability of free legal services… located in the district where the removal hearing is being held” and to “ascertain that the respondent has received a list of such programs.”

The court noted that when an agency such as the Office of the Attorney General promulgates a regulation protecting a fundamental or constitutional right of the party appearing before it, the agency must comply with that regulation. Failure to comply would invalidate that action of the agency even without a showing of prejudice to the complaining party.

In holding that the deportation was invalid, the court said that the right to an attorney in a deportation hearing must be safeguarded because of the grave consequences of removal. A deported alien would have a remote possibility of returning to the U.S. thus depriving him of the right to stay and live and work in the U.S.

Deportation Rescinded Due to Lack of Notice

Deportation or removal is a harsh punishment because it expels an alien from the U.S. even if his/her family and business are left behind. But aliens under removal proceedings have rights and one of them is the right to receive a hearing notice.

Removal may be ordered in absentia. This means that if the alien who has been notified of the hearing does not attend such hearing, an immigration judge may order removal in his/her absence.

What kind of notice is required for a removal in absentia to be valid? Does the alien have to be notified personally? If he/she moves and the notice was sent to an old address, is there a valid notification? What if the address given was incorrect? If the alien has an attorney, does the attorney have to be notified?

In a recent case before the Court of Appeals for the Ninth Circuit located in San Francisco, California, the removal order against an alien was rescinded because the alien did not receive the notice of hearing and his attorney was not notified of the time and place of the hearing.

The alien in this case had been detained after he attempted to enter the U.S. with a valid foreign passport but with an altered visa. While he was detained, he was personally served with a notice to appear (NTA) and the immigration court personally served him with a hearing notice.

The hearing notice specifically stated that he had the right to hire an attorney and that his failure to appear at the scheduled hearing could lead to his removal in absentia.

After the NTA and the notice of hearing were received by him and before the scheduled hearing, he retained an attorney to represent him. The attorney immediately notified the immigration court of his representation and filed a notice of appearance. The attorney succeeded in his motion to change the hearing venue from San Pedro to Los Angeles where the alien’s grandparents lived.

Prior to his release from detention upon posting a bond, the alien completed three forms that required him to give his address where he could be reached. He provided the court the street address of his grandparents in all the three forms but in two of the forms, he did not indicate an apartment number and the third form indicated an incorrect apartment number.

The immigration court later sent a hearing notice to the address that did not include an apartment number. The alien did not receive the hearing notice and in fact the notice was returned to the court 8 days after the scheduled hearing date. The hearing notice was never sent to his attorney.

Because the alien failed to appear at the hearing, the immigration judge ordered his removal in absentia. His attorney received a copy of the removal order.

The attorney immediately moved to reopen the removal order on the ground that he never received notice of the hearing and therefore he did not have the opportunity to present an asylum case for his client.

The immigration judge denied the motion on the ground that notice had been sent to the alien but to the address without the apartment number. The Board of Immigration Appeals reaffirmed the denial of the motion so the attorney petitioned the Court of Appeals for review.

The Court of Appeals held that the in absentia removal order must be rescinded because the alien’s attorney was not served with the hearing notice.

Scroll To Top