If a person lost removal or deportation proceedings, the Court would serve an order of deportation or removal against him or her. At this point, a person may fail to appear in the scheduled hearing. Even if you do not show up for your removal hearing, the hearing goes on without you. The judge can issue a deportation order in your absence. To obtain an order in absentia, the Court has to obtain the proof that a person received written notice.
The Order issued in this way is called an in absentia order, and it has the full consequence of a removal order issued as you appeared and lost your case. This might cause entering an order of removal or deportation against the person in absentia. Meaning, that if a person is ever “caught” by Immigration and Customs Enforcement, it can take a person into custody and deport him or her from the United States.
Sometimes, a person, even though served with the Order to leave the country, decides to stay within the United States for numerous reasons. For example, a person who has employment authorization may choose to remain in the United States physically and seek ways to improve the immigration status situation afterward. Yet, in that case, the old deportation or removal order will be on the way.
An in absentia order makes a person ineligible for various forms of relief, registry, and adjustment, cancellation of removal, voluntary departure, or change of status for a period of 10-years after the date of the removal order.
However, even these removal orders may be overturned later. For instance, it may happen that a person did not receive the notice of his or her hearing (Notice to Appear) because a person had moved and notified the government, but the government never sent it to the new address. Or the removal order may be overturned because someone in the household forgot to deliver the notice to the person.
Thus, the Order in absentia may be precluded in two cases, if:
- you did not receive the notice, and
- you cannot be legally deemed to have received such notice.
For instance, if Immigration and Customs Enforcement delivered the notice to your correct address, but you fail to receive it due to certain circumstances occurring in your household, you can still be charged with receiving the notice, while you did not receive it physically.
It will be considered that you have received the notice if ICE sent the notice to the address it has for you, and you moved since then if:
- you did receive the notice;
- you do not argue it was sent to the wrong address.
It is good to point out that it is necessary to argue if you did not receive the notice. In these situations, it is highly advisable to hire an immigration lawyer. Your legal expert will ensure that all relevant proofs are gathered and presented to the court on your behalf. At this point, you can show that the notice has been lost or sent to the wrong address. If you can establish this, you may have relief from an order in absentia.
Nevertheless, when you file a motion to reopen, you ask the judge to restart the proceedings and schedule a new hearing — this results in an automatic stay of deportation until the judge makes the decision. In other words, as long as the motion is pending, you can remain in the United States.
Filing this motion, based on a lack of notice of the hearing, can be done at any time and no cost.