Motions To Reopen Now Possible After Leaving U.S.

It is bad enough to be ordered deported when you know about the hearing. It is even worse to believe you are about to get a green card and find out that you may not be eligible because you have an existing deportation order. This can result from several different ways.

Many aliens were persuaded to file for asylum under the mistaken belief that it will result in obtaining employment authorization (EAD). Most asylum applicants do not qualify for the EAD and their cases are referred to the Immigration Court. If the court does not have their correct address, they will not be notified to attend the hearing. At the hearing, if the government proves that they are removable, the court can order the alien removed even if the alien is not in court. The process called being deported in absentia.

In other cases a person may be placed into proceedings with a Notice to Appear that indicates that a date and time for a hearing will be set at a later date. The alien may change their address, but the notice that they send to the court may not be processed correctly. Some time later, the court sends a notice of hearing to the last known address, but the alien no longer lives there. Here again, the judge can proceed in the alien�s absence and order the person deported in absentia.

A third scenario is that the person is notified that they have been placed into proceedings and they decide to just go home. They leave the United States before the date of their first hearing; however, no one notifies the court of this fact and, here again, the alien is ordered deported in absentia.

An alien who is ordered deported who has left the United States is considered to have been deported. This is true even if the alien is not physically removed from the U.S.by the government, but rather leaves on his own. The process is called �self-deporting�. Legally, the alien�s departure while under the outstanding order of deportation has the effect of executing the order. The result of self-deportation is that the immigration court and the Board of Immigration Appeals lose jurisdiction over the case and have no power to hear a motion to reopen. This is extremely significant because the alien needs a waiver in order to return to the U.S. after being deported. If the alien returns illegally, it can result in a permanent bar with a mandatory wait of ten years before a waiver may be requested.

In a very recent case issued by the Board of Immigration Appeals, the Board held that an alien�s departure from the U.S. while under an outstanding order of deportation issued in absentia does not deprive the Immigration Judge of jurisdiction to entertain a motion to reopen to rescind the order if the motion is based on lack of notice. The case is called Matter of Bulnes-Nolasco. Bulnes-Nolasco was personally served with an Order to Show Cause (precursor to Notice to Appear) and Notice of Hearing in 1996. When she failed to appear at her hearing in 1998, the judge ordered her removed in absentia. In 2007, she filed a motion to reopen arguing that she did not receive proper notice of the deportation hearing. The Immigration Judge (IJ) denied the motion finding that the in absentia order was executed by her subsequent departure from the U.S. She filed a motion to reconsider arguing that she was ordered deported while she was back home since she had returned to Honduras almost a year before her hearing. She subsequently had returned to the U.S.and argues that she had not left the U.S. under an order of deportation. When the IJ denied her motion, she timely appealed to the Board.

The Board held that an in absentia deportation order does not trigger a jurisdictional bar to reopening if the alien did not receive proper notice. The Board referred to the regulations that state that an in absentia order may be rescinded at any time if the alien demonstrates that he did not receive notice. The Board also noted that �rescind� means to annul ab initio (meaning voided at its inception). The in absentia order issued in proceedings where the alien had no notice becomes a legal nullity upon its rescission. The result is that the alien reverts to the same immigration status he had before the order. That means that the alien is simply in the position of being in deportation or removal proceedings. Therefore, there is no �self-deportation� and no return after being deported. Other bars and problems are not the scope of this article.

This is exciting news for those people who left the U.S. not knowing that they had been ordered deported. Anyone in that position should confer with an experienced immigration firm to determine if they are eligible for relief.

Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.