When someone is in removal (deportation) proceedings, they are required to appear at all their scheduled hearings, or else they will be ordered removed in absentia. Latin for “in the absence.” Thank you, Missouri State University (Southwest Missouri State at the time) for the Latin lessons. The key problem with these kinds of orders are that the individual won’t know they have been ordered deported, because they aren’t there. How this generally happens is that the individual did not get notice, for one reason or another, and so whatever issue caused them not to get notice of the hearing in advance also results in their not getting a copy of the order of removal. Without that notice, they can not file an appeal within the required 30 days, or a Motion to Reopen within the required 90 days. Luckly, the law allows for a Motion to Reopen In Absentia orders to be filed at any time, if it is based on lack of notice. The problem here is proving lack of notice. If the government mailed the notices to the last given address, and it wasn’t returned, there is an assumption that the notice was proper, though it can be refuted with specific evidence to the contrary.
How this normally comes up is where the person is arrested and taken into ICE (Immigrati/on and Customs Enforcement) either on a mission to enforce the old order, or through some other issue like arrest by local police. Then, the alien only has a very short amount of time to get the case reopened, because they are no longer required to be given any hearings, and are immediately subject to removal from the U.S. For those from Mexico, there is a flight back every Friday, and so it often means that someone may have less than a week from the date of arrest to the date of removal, depending on the circumstances. Luckily, where the motion is based on lack of notice, it carries with it an automatic stay of removal, keeping them in the country while a Judge decides whether or not to reopen their case.
We have done many of these over the last year with a surprising level of success. That means, the family comes to us days after the alien is arrested on the old order, and sometimes less than 24 hours before they are to be removed, we file a motion with the necessary statements and evidence, resulting in an automatic stay. Many times they are released from detention once the old order is reopened.
Not all of our cases dealt with lack of notice cases. Sometimes they are based on the persons fear of returning to their home country, where they did not previously file for asylum. Sometimes they are based on new forms of relief the person was not eligible for until recently. These kinds of cases are far more difficult, and do not all carry with them automatic stays of removal, requiring that we get an additional order from the court immediately staying their removal, at least until a decision is made on the motion to reopen.
Motions like this can be an absolute miracle for the families involved who go from being told their loved one will be deported in the next few days to having them back home with a chance to fight for their right to remain in the U.S. Certainly, if you have a loved one arrested by ICE, contact an attorney right away, as you may not have any idea that they have an old order of removal and if you wait, they may be gone before you know it.