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Sunday, August 26, 2012

Motions to Re-Open in Absentia Decisions

Many of our immigration clients come to us with serious problems -- often with imminent threat of deportation looming over their heads. I thought I would take a moment to discuss how to re-open a case where a decision was made against you in absentia (you weren't at the hearing).

When a client has been found deportable in a prior removal hearing, an order of removal will be issued by the judge, and the immigrant should be deported. However, it happens frequently that immigrants who should be removed are left languishing in the United States. One reason this happens is failure of the ICE or DHS representative to properly serve the alien with a notice to appear, or if served, with a trial date he/she needs to be present at. This is especially true when the alien does not have an address to mail notice to, or the address given was not properly understood and no notice was ever received by the alien.

The take away from this: To be a valid form of service, the alien must have received notice of the trial. This requires the alien to provide ICE/DHS with a valid address.

If there is an outstanding order of removal on an alien, they will be arrested and detained by ICE, and deported usually within 30 days of being detained. No further trial is needed.

How can you stop this? The process is called "Motion to Re-Open a Removal Order Issued in Absentia". In years gone by, this was much easier to obtain. Usually, if the judgment was made without the alien present, there would be an automatic re-open if requested by the alien at a later date. This is no longer the case. Now, you must show that proper service was not had in order to re-open an in absentia hearing.

The filing of an in absentia re-opening motion includes the brief, proof of service on DHS, an EOIR-28, and usually a cover letter. There is no fee for this motion, as if judged valid, an in absentia order is considered a revocation of an improper trial, and that should not be at the expense of the alien (improper notice = bad trial = re-hearing).

Remember, a mere re-hearing does not a victory guarantee. Indeed, you will have to defeat the original cause of deportation that has now been re-opened, and you have to contend with any additional problems that have manifested since that time.

Do you need an immigration case re-opened? DO NOT WAIT! There is no need to require a trial BEFORE deportation if an outstanding removal order is place. Call us immediately and let us stop the clock and review the case before your loved one is shipped out-of-country!


Sean R. Hanover, Esq
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