Appellate practice dedicated exclusively to filing deportation appeals, motions to reopen, reconsider, remand and/or reissue before Immigration Judges or the Board of Immigration Appeals, and filing petitions for judicial review of deportation orders in all of the Federal Circuits of the United States.
|What are motions to reopen, reconsider, and remand - Explained |
Motions to Reopen, Motions to Remand or Motions to Reconsider Orders of Deportation, Exclusion or Removal, Issued Either by an Immigration Judge or the Board of Immigration Appeals
At the outset, we want to warn the reader that filing a successful motion to reopen is no easy task by any stretch of the imagination.
- Motions to reopen are comprised of two (2) distinctive parts. The first part, in the mind of the intended audience screening the motion, involves the question of whether the motion complies with everyone of the numerous procedural rules. If it does not, the motion will be rejected and denied outright (the vast majority of all motions to reopen filed with the BIA or immigration judges are denied at this first step). And if the motion complies with everyone of the procedural rules, then the second part involves the question of whether the motion presents compelling reasons to be granted. To be successful, a motion to reopen must first succeed at depriving the BIA (or the immigration judge) of the ability to reject it outright by surviving the initial screening of full compliance with all procedural barriers, and second, the motion must also compel the BIA (or the immigration judge) to consider the contents of the motion to reopen in a manner that invites the BIA (or the immigration judge) to want to exercise favorable discretion to grant reopening.
Filing a successful motion to reopen is likely the hardest task to accomplish, the most complex area in the practice of immigration law and consequently, the area of the practice of immigration law that is the hardest to succeed at because of the complexities created through the regulatory procedures that govern these motions. Below we describe the underlying reasons behind them.
First, there is a strong institutionalized tendency among the immigration judges, the BIA and even the federal courts of appeal to resist the reopening of cases that have been completed in many instances, several years ago. Part of the reason for this institutionalized resistance is because several decades ago, the United States Supreme Court in deciding an immigration case involving the denial of a motion to reopen remarked in passing that: "motions to reopen are disfavored" and this is true not only with deportation cases but in all types of cases that courts of the United States handle. Back in the immigration and deportation context, motions to reopen prior to 1996 were the sole creation of administrative regulations and included a vast number of precedential administrative cases that received the approval of the federal courts. That is, there was no specific statute in the Immigration and Nationality Act authorizing let alone governing the procedures for filing motions to reopen. They were then entirely the result of "benevolent" rules promulgated by the Attorney General of the United States, in part, to comply with a legal concept known as the "due process clause."
- The term due process generally refers to the "fairness" in which a system of laws can be applied against a person. And more specifically, it refers to providing a person reasonable notice and reasonable opportunity to respond, so that in a case where the person is being accused of committing a crime, the due process term refers to the act of giving the accused reasonable notice of what crime he or she is being charged with as well as a reasonable opportunity for the accused to respond to those accusations. The due process principle contains a series of very fundamental rights (rules) that all persons in the U.S. have in our legal system, including the right to a "fair hearing" (which includes an impartial adjudicator or judge), the right to be heard, the right to examine the evidence that is being used against the accused, the right to present evidence in his or her own defense, the right to have legal representation among other rights that our system of laws interprets as inherent in the U.S. Constitution. This right to due process is available to all persons in the United States and even though it is more significant in criminal proceedings where life or freedom is at stake, it applies as well to all civil proceedings just the same. To give you an example of the importance that the "due process" principle in our constitution is, consider the fact that, in its absence, a person could be charged with committing a crime, be brought in front of a judge who after listening to the charges from the state could convict the person of that crime (find that person guilty) and sentencing that person to many years of incarceration without ever giving that person the opportunity to defend him or herself, the opportunity to question the evidence that is being presented against him or her, or to question the accuser, or the right to be represented by a lawyer, or the right to be heard in his defense, or the right to file an appeal to a higher court, et cetera.
In 1996, our Congress for the very first time in the history of our immigration laws enacted a statute expressly authorizing the filing of motions to reopen, thereby "graduating" motions to reopen from a purely administrative act of procedural benevolence to a statutory right. Notwithstanding this, many federal courts since the 1996 creation of a statutory right to file a motion to reopen continue to reference the Supreme Court's decades old precedent that "motions to reopen are disfavored". It is as if the courts still referencing the decades' old proposition (that motions to reopen are disfavored) when reviewing a denial of a motion to reopen have not caught up yet with the reality that since 1996, our legislators have officially approved the right to file motions to reopen under certain conditions that now form part of a statutory scheme and bear the seal of approval of the Congress of the United States. The Supreme Court in 2010, in Kucana v. Holder recognized that "[t]he motion to reopen is an important safeguard intended to ensure a proper and lawful disposition of immigration proceedings." This recognition would tell you that the Supreme Court's traditional view that "motions to reopen are disfavored" would now be at odds with its subsequent decision in Kucana but you would be wrong. Of course just as all other courts of the United States continue to prefer leaving closed cases closed, so do the courts that handle immigration cases, even after the 1996 graduation of these motions into a statutory right and even after the Supreme Court has recognized the important safeguards that motions to reopen can serve. Yes, breaking old habits is hard.
Another important institutionalized contributor for the existing resistance in reopening deportation proceedings is because the federal courts that interpret the administrative procedures of the administrative agency (relative to making it difficult to reopen already closed cases) employ to an extent, the same principles that the agency is employing when denying the reopening of a closed case. In other words, it makes it generally difficult for the federal courts to disapprove of these procedures, when they closely resemble the procedures that the federal courts employ for purposes of leaving cases "unopened" after they have reached finality.
But the resistance to reopening closed cases is understandable when viewed from the prospective of the immigration judges and the BIA (as is for the judges in the states and the federal courts systems). Why? because otherwise, a final order of deportation by an immigration judge will never become "final" if noncitizens are allowed to continue to file motions to reopen their cases, frustrating the finality of the decision making process in immigration courts. There are of course many more logical reasons why it would be problematic for the efficacy and functionality of the courts to not make it difficult to reopen already closed cases. The United States position in that regard cannot be said to be totally unreasonable. But what is wrong with that resistance is that adopting the 1996 blanket rules significantly limiting the availability of motions to reopen can be summarized by the old and familiar proverb that: "We do not throw out the baby with the bath water." Doing so is neither fundamentally fear nor nearly as effective as it was intended. Analyzed from the noncitizen's position, the problem with a blanket rule is that it prohibits all noncitizens from ever bringing untimely motions to reopen closed cases, even where the facts and circumstances overwhelmingly warrant that a favorable exercise of discretion be made. The United States should return to the rules in existence before the 1996 amendments, where immigration judges and the BIA would review the question (of when a final order should be reopened) on a case by case basis, denying those motions that did not deserve a grant on the merits of the motion while maintaining the probability of reopening available for those cases that really merit it.
Second, when you file a motion to reopen now you must overcome a labyrinth of complex and numerous procedural "traps" (regulatory requirements) that have been intentionally designed to bring a rapid death to your motion to reopen before it gets to the point of being considered on its own merit. Keep in mind that the approach to motions to reopen from the BIA and immigration judge's prospective can be said to be divided in two (2) sectors. The first sector is comprised of the "rules" that govern the procedures of "when" and "how" these motions must be filed; while the second sector involves the more fundamental purpose in the motion, the "what" and "why" reasons the motion is being filed in the first place. Said differently then, the first sector deals with how the "package" is presented while the second one deals with the "thing" that is inside the package. If the package of your motion does not comport with the specified rules, the BIA or the immigration judge will reject and deny the motion, without ever having to examine the thing inside the package, i.e., what your motion says and the reasons why it should be granted.
One such example is the regulatory requirement that the motion to reopen be filed within the first 90 days from the date of the order of the immigration judge or the BIA. This is a very harsh requirement because it forces you to act within those first 90 days or the judge (or BIA) will be unable to consider the motion because it is untimely filed. We mean that is harsh because if you only learned of the "need" to file the motion to reopen after the 90 days have passed, it now creates another hurdle that you will need to overcome to explain that you have acted diligently in securing your legal rights. In other words, you will need to convince the reader of your motion as to why you did not discover the need to file the motion to reopen at an earlier time. And if your answer is not within the limited examples that have been allowed, your motion to reopen will be denied on procedural grounds only without ever considering the fairness grounds as to the reasons why the motion should be granted.
To illustrate this better in a hypothetical example, lets consider Sally, a minor child who enters the United States with her parents in 1996, when she is fully dependent on them for all of her legal matters, because by reason of her age, Sally was incompetent to make legal decisions on her own. Consider now that she is an adult and wants to marry her boyfriend, a citizen of the United States. After marrying him, her husband files a petition with the Service in order to obtain legal status on her behalf. Sally and her husband appear before the Service for an interview on her eligibility to receive permanent residence, but she learns then that she had been ordered deported by an immigration judge in 1998. She discovers that while she was in preschool, her parents (now divorced) had been placed in removal proceedings because their visas had expired. At the end of the deportation proceedings, her parents were authorized to leave the United States voluntarily with an alternative order of deportation if they did not comply the voluntary order by a certain date. The parents then decided not to leave the United States as instructed and as a consequence she and her parents were ordered deported automatically after failing to depart. Sally cannot now obtain her legal status from the Citizenship and Immigration Service because in such cases, Sally would be compelled to ask the immigration judge to reopen her deportation case for purposes of processing Sally's petition for permanent residence. This hypothetical is actually real and repeats daily thousands of times throughout the immigration courts of the United States.
In theory, Sally would have a strong equitable claim that she was a minor at the time that the order of deportation became effective for purposes of convincing an immigration judge to reopen her case now. However, the 90 day limitation on the time for filing motions to reopen has long passed since 1998 and she now needs to explain, convincingly, that she is acting diligently at the time she is filing her motion to reopen. The problem will usually resolve on the facts only. Did Sally act promptly when she first learned that she had been deported? Did Sally had a duty to investigate her legal status as soon as she became an adult? Because if she did not act diligently her motion to reopen will be denied automatically on procedural grounds alone. This means that the person adjudicating the motion will never get to the point of considering the equities of having had no legal competence to act on her behalf during her underage years. Therefore, these limitations are barriers that work perfect for the immigration judges and the BIA in that they are not required to look at the fairness of Sally's reasons why she should be forgiven for her omissions when she was only a child, they are prevented from looking at those issues if Sally did not act with expedience after she emancipated as an adult.
Another example is the regulatory requirement that only one (1) motion to reopen be filed rendering any subsequent motions a nullity. And only after you have succeeded in overcoming these very cumbersome regulatory limitations, is that your motion will stand a chance that it will be considered on its merits (meaning, only if you are able to get through the thick labyrinth, you will get a chance at getting the judge to consider the reasons you are filing the motion to reopen). This is not a walk in the park for you to do it yourself, unless you are an expert in the subject of motions to reopen deportation orders, and specially where the regulations give you only one (1) single opportunity to prepare them right. And suppose that you succeeded in overcoming these regulatory limitations on your motion to reopen, then in that event, you will have to convince either the immigration judge or the BIA that you deserve or warrant that your motion to reopen be granted: a serious gigantic undertaking not to be taken lightly. We are not saying that you should not consider filing a motion to reopen where the law compels you to reopen your case. Rather, we are saying that it is such a complex undertaking that you should not do so without expert professional help. Before the 1996 creation of these hurdles for reopening deportation proceedings, there were no such time or numerical limits.
But there is some good news for a change.
Although there are "time" as well as "numerical" limitations governing when and if such motions to reopen or reconsider can be filed, in existence since 1996, there are also a number of exceptions that have been carved-out (since 1996) by the BIA and the federal courts in appropriate cases. These exceptions sometimes can allow the noncitizen filing a motion to reopen or reconsider (be it before the immigration judge or the BIA) to avoid automatic denial of the motion based entirely on the fact that the motion violates the time and/or numerical limitations imposed by the laws on filing such motions.
Filing a motion to reopen, remand or reconsider before the BIA or before the immigration judge is like walking on very thin ice and you must be extremely careful in preparing the motion so that it can stand a chance in it being considered valid and properly presented. The articles contained throughout this website regarding motions to reopen will address these problems in particularity.
Have you been ordered deported and want to know about the motion to reopen process?
Answer the following questions and then click the "send" button.
In a few minutes (or within the hour if we are handling too many calls)
an expert motions professional will respond by your choice of email or telephone.
What is a motion to reopen, remand or reconsider?
A motion to reopen is a written request that is submitted to an immigration judge (or to the BIA where applicable) wherein the noncitizen is asking for an order reopening the deportation proceedings that have already been terminated. A motion to remand is also a written request that is filed with the BIA asking the BIA to exercise its authority to send the case back to the immigration judge for purposes of presenting to the immigration judge a claim or an application that could not be considered by the BIA in the first instance and could not have been presented to the immigration judge before. And a motion to reconsider on the other hand is an application to the either the BIA or the immigration judge to revisit the last decision once again because of some mistake of fact or law that the BIA or the immigration judge overlooked. The most popular of these motions is the motion for reopening, because if it is granted, it enables the noncitizen to restart the legal process anew (similar to having the opportunity to a second trial in criminal court proceedings). The motion to reopen is also the most popular of the motions because noncitizens who have had an opportunity to present their cases before an immigration judge and lost, but did not depart the United States, these noncitizens cannot apply for permanent residence status for example if they marry a citizen of the United States, unless they get their cases reopened by the immigration judge or they go back to their country to apply from abroad. For these reasons, we will concentrate in providing the reader with the necessary information for the most popular of the motions mentioned above and will address the motions for remand and reconsider only briefly elsewhere in this website.
The motion to reopen must contain factual and legal argument in support of the reasons why the motion to reopen should be granted, as well as the intended purpose behind the granting of the motion to reopen even though in some circumstances, the intended relief that will be sought if the removal proceedings are ordered reopened is not legally required. For example—assume that a noncitizen wants to file a motion to reopen her removal proceedings to rescind an order of deportation that was entered by an immigration judge in her absence (also known as an order of deportation "in absentia") and assume further that she did not receive actual notice of the time and place of the hearing, her motion to reopen will have to contain sufficient factual information accompanied by legal argument showing convincingly that the notice to attend the hearing was indeed not received—and even though, to reopen the proceedings in these circumstances would not require the motion to show what relief will be pursued— factual information and legal argument showing the specific application for benefits that she intends to apply for if the motion is granted makes granting reopening even more compelling when the motion shows that at the time of the in absentia order, she was entitled to apply for that relief.
Consistent with this simplified explanation, if a noncitizen wishes to file a motion to reopen his or her deportation, exclusion or removal proceedings before an immigration judge (or before the BIA), the motion must comply with numerous and complex procedural and substantive rules, just so that the motion to reopen could have a fair chance at being considered by the immigration judge or the BIA, and if your motion gets that chance, it must also convince the immigration judge or the BIA member deciding the motion that the specific order that is being requested in the motion to reopen warrants that it be granted.
This is not an easy thing to accomplish by any stretch of the imagination. It will require you to prepare and present a motion that completely and fully explains that it was not the fault of the noncitizen in not receiving the actual notice of the time and place to attend the hearing, as well as, explains that the reopening will not be in vane, meaning, the noncitizen will qualify for receiving the grant of an application for an immigration benefit (such as permanent residence, cancellation of removal, a waiver grant, etcetera).
To expand on this simplified explanation of what is a motion above, think of it as if a motion can be divided into having two (2) separate components, each of which your motion must establish to the satisfaction of the immigration judge or the BIA that it warrants to be granted.
The first component—overcoming time and numerical barriers
The first component consists of overcoming the several procedural barriers created by the 1996 legislation (referred to as IIRAIRA, or IIRIRA) amending the immigration laws to make it significantly more difficult for noncitizens to reopen their cases. The goal of Congress in the 1996 legislation was to bring finality to the removal proceedings and to make it easier for ICE to deport those noncitizens who had received a final order of deportation (or removal). The first component then was and continues to be where the highest number of motions to reopen or reconsider are denied by the immigration judges and the BIA.
If a noncitizen's motion to reopen cannot establish it fully complies with the exigent demands of these rules that involve the very first procedural step or stage of the two-components, then immigration judges and the BIA will issue a denial of the motion to reopen or reconsider without the need to ever consider the second component.
The second component— the merits of the motion to reopen and the art of
convincing the reader why the reopening should be granted
The second component involves convincing the immigration judge or the BIA to exercise favorable discretion and grant the motion. A very small number of the thousands of motions that are filed by noncitizens in any one month manage to graduate from the first procedural series of hurdles to this second discretionary stage.
The fact that you may have successfully established your motion to reopen fulfills all of the procedural requirements of the first stage does not guarantee your success on establishing the second discretionary stage. Otherwise there would be no need for fulfilling a second stage.
You still need to convince the immigration judge or the BIA that you deserve the grant of reopening. And here also it should not be a surprise to you that there are a few exceptions to these rules. One of them is where the underlying application for relief itself is mandatory (such as when the noncitizen seeks to reopen his deportation proceedings to apply for withholding of removal, a mandatory relief).
Since 1996, a noncitizen wishing to file a "motion to reconsider" must do so within the first 30 days after the original order was issued. Likewise, a noncitizen wishing to file a "motion to reopen" must file the motion within the first 90 days after the original order was issued. These rules were created for purposes of bringing "finality" to the decisions of immigration judges and of the BIA. These rules were designed to close the gap, put an end, to the prior practice (before July 1, 1996) that noncitizens could file a motion to reconsider or reopen deportation proceedings several years after the case had been closed, i.e., after the case had reached a "final" decision. This is the short version explanation about the rules pertaining to "time limitations" that apply to motions to reopen or reconsider decisions entered by immigration judges or the BIA after July 1, 1996.
This rule is simpler (not simple). It says that a noncitizen is allowed to file only one (1) motion and alike the prior "time limitation" applies only after the order has become "final". In other words, assume for example that an immigration judge has entered an order of removal against a noncitizen on July 1, and the noncitizen has filed a timely appeal to the BIA by July 30 (appeals must be filed within 30 days), the noncitizen can file two (2) or more motions before the BIA while the appeal case is still pending before the BIA and without regard to the "one motion" or "numerical limitation" on motions because the BIA has not yet rendered a "final" decision on the appeal case. Remember that the "time and numerical limitations" only apply after the decision of the agency (immigration judge or BIA) has become "final".
Keep in Mind That the Time and Numerical Limitations Imposed on Motions to Reopen are Both Subject to Equitable Tolling, and Vary Significantly Depending on the Particular Jurisdiction Where the Motion to Reopen Must Be Filed
"Equitable tolling" is a legal term developed into a common law doctrine traceable to the "courts of chancery" (equities) in early English law and later surfaced in American jurisprudence such as in 1874 in a decision of the Supreme Court of the United States (Bailey v. Glover). The high court in Bailey described equitable tolling as follows:
- In suits in equity where relief is sought on the ground of fraud, the authorities are without conflict in support of the doctrine that where the ignorance of the fraud has been produced by affirmative acts of the guilty party in concealing the facts from the other, the statute will not bar relief provided suit is brought within proper time after the discovery of the fraud.
The term equitable tolling therefore means in short that where there is a rule or rules that require a person to take affirmative action within a certain amount of time to preserve his or her rights (such as with the "time" and "numerical" limitations imposed on motions to reopen deportation proceedings) but the person was prevented from taking any such action within that required time due to the fact that the person did not know and had no reason to know because of factors not within his or her control, equitable tolling will permit that person to be excused from complying with the time and numerical limitations if the person can first show that (a) he or she was not at fault for not knowing and (b) that he took action diligently after learning of the facts. For example, assume for a moment that you hire a lawyer to file an appeal in your case and after you pay his or her legal fees you count on her filing the appeal on time. Assume further that one or two years later you learn that the appeal was never filed due to an inadvertent or negligent reason known only to the lawyer you had hired. You would likely be authorized to use the equitable tolling doctrine to compel the BIA to accept your appeal late, by proving two things: (1) that you were kept ignorant of the fact that the lawyer never filed the appeal on time, be it due to negligence or inadvertence, until recently when you learned that it had not been filed; and (2) that immediately upon learning of these facts you took action to preserve your rights. Said in other words, a person in that situation would benefit from the equitable tolling doctrine and should be allowed to file the appeal (or motion to reopen) even though it is untimely. Assume another example, where you hired a lawyer to file a timely motion to reopen but although the motion was filed, it was not filed in a timely manner. You did not learn of this until agents of ICE came to knock at your door before 6:00 a.m., coming to arrest you and they inform you that your motion to reopen was declined or rejected because it was filed out of time. You would be able to rely on the equitable tolling doctrine to file a new motion—out of time, and out of number—if you can show to the BIA that (a) you hired the lawyer to file the motion on time but she never told you that she filed it out of time, and that she never informed you that the motion had been denied because it was filed out of time without valid reason. Remember what we stated at the outset in "Our Purpose" page that: "Readers should keep in mind that for just about every rule of law on the books ... there will likely be an exception or exceptions that may apply."
So, you might ask: what are you to do if you have to file a motion to reopen in your case? The answer is obey all of these rules explained in this website. Make very certain that your motion to reopen complies with all of the rules that govern its procedures and only then focus on the what and why of your motion to reopen. Better yet, because it is very likely that you are not an expert in the laws governing motions to reopen, do not attempt preparing and filing the motion by yourself.
A Word on Finality of Removal, Deportation or Exclusion Proceedings
The term "final" as it applies to removal, deportation or exclusion proceedings means the period that is after the expiration of the last day for filing an appeal from the decision of the immigration judge or the BIA. For example, if a noncitizen receives an order from the BIA dismissing her appeal on July 1, that order of the BIA becomes "final" for purposes of filing a motion to reconsider after July 31, as this day is the last day of the 30 days within which, a motion to reconsider must be filed. Likewise, if a noncitizen receives an order from the BIA dismissing his appeal on July 1, that order of the BIA becomes "final" for purposes of filing a motion to reopen on September 29, as this day is the last day of the 90 days within which, a motion to reopen must be filed. Word of caution: there are variances of these rules when we are considering to file either a motion to reconsider or remand a decision entered by an immigration judge when the decision is on appeal before the BIA. Yes, it is complicated when you start deviating from the simpler rules but such is with anything to do with "law" or "rules" because there almost always are "exceptions".
A word of "warning"—act diligently or forever lose your rights
In short, the immigration laws of the United States and the immigration rules of the federal regulations that implement them require noncitizens (and their lawyers) not only to act promptly if they wish to file a motion or lose that right—but also require them to act competently— because only one motion is permitted after the deportation, removal or exclusion has become final. As noted above, the federal courts have recognized exceptions to the applicability of these rules in certain cases such as for example when the noncitizen hires a lawyer to represent her in filing a timely motion and due to the lawyer's fault, the motion is not filed in a timely manner.
In such cases, the federal courts have required the BIA to set aside the time and numerical limitations where the noncitizen (a) had no knowledge that the lawyer had not filed the motion in a timely manner (b) filed a new motion within a very short reasonable time after learning that the prior lawyer did not file the motion in a timely manner. But, the federal courts have uniformly required a noncitizen to file a new motion to reopen expeditiously, that is very promptly (frequently within weeks) of learning that their prior lawyer did not file the motion on time.
Said differently, even though federal courts have recognized that a noncitizen was not at fault in not filing the motion to reopen within the prescribed 90-days time; and that the noncitizen was not at fault in learning months or years later that their lawyer had not filed the motion in a timely manner, the federal courts have denied the noncitizens the opportunity to reopen their cases when after having learned for the first time that the lawyer did not file the motion on time allowed inexplicable amount of time to lapse before filing a new motion.
In conclusion, if you learned on July 1 that the lawyer you retained did not file the motion to reopen back when it was timely, do not wait an unreasonable amount of time to claim your lost right before the BIA. Act promptly. How promptly depends on your own personal circumstances but as a general rule, within weeks from learning for the first time that your lawyer had not filed the motion in a timely manner. The term lawyer in these cases is meant to include non-lawyers as well.
Because of the Time and Numerical Limitations
Special Attention Should be Given to the
Preparation of Motions to Reopen/Reconsider
Particular attention is placed on the preparation of a motion to reopen to increase the likelihood that it will be granted. The available statistics from the Executive Office for immigration Review (EOIR) show that a very high percentage of motions to reopen are denied both by the BIA and the immigration courts. In 2008 alone, noncitizens filed more than 10,000 motions to reopen with both the BIA and the immigration courts.
However, at the moment there are no reliable statistics published that show the percentage of motions that were granted or denied. It is believed that a reasonable estimate is that as many as 90% of them are denied each year. One reason contributing to this high percentage of denials is because it is estimated that more than 60% of all motions to reopen are filed by noncitizens without the aid of a professional immigration attorney or authorized representative.
Another significant contributing factor is that the vast number of those motions to reopen that are denied, are so denied because they were procedurally deficient at the time when they were filed. A motion to reopen that does not meet the procedural regulatory requirements will be denied by the BIA or by the immigration judge solely on procedural grounds, without ever considering the merits of the motion itself.
ORDERS OF REMOVAL IN ABSENTIA
An order of removal in absentia is simply an order of deportation entered against a noncitizen in his or her absence. A judge is authorized to enter an order of removal in absentia where the Department of Homeland Security (DHS) has filed a case in immigration court against a noncitizen and all of the following conditions are met: (1) on the date of the scheduled hearing before the immigration judge, the DHS demonstrates to the immigration judge that it served the noncitizen with a notice to appear before the immigration court at the time, date and location of the deportation hearing; (2) The immigration judge calls the case of the noncitizen in the courtroom on the date of the scheduled hearing and the noncitizen does not come forward before the judge at that time; (3) the immigration judge makes a finding in the "record" that the noncitizen was duly served with a copy of the notice to appear at the time, date and location of the scheduled hearing and without excuse the noncitizen failed to appear; (4) the DHS attorney proves each of the allegations contained in the charging document and (5) the immigration judge orders the noncitizen removed in his or her absence.
The meaning of "service" of the notice to appear (or notice of hearing) upon the noncitizen
Note that tere is a fundamental legal distinction between a noncitizen being properly served with a "notice to appear" (or a "notice of a scheduled hearing") before an immigration court, set at a particular time, date and place and the noncitizen having properly received the notice to appear or notice of a scheduled hearing. For example, to prove that the noncitizen was properly served with a notice to appear, DHS need only show that on a date described in the writing, notice of the time, place and address of where to appear was forwarded to the noncitizen to his or her last known address. In other words, in the majority of instances, the DHS attorney will not need to prove to the immigration judge that the noncitizen actually "received" the notice of the time, date and address of where to appear. All that the DHS attorney needs to prove to the immigration judge is that DHS forwarded the notice of the hearing as required by law to the noncitizen's last known address of record with DHS.
Rescinding an order of removal in absentia
Generally, therefore it is up to the noncitizen when seeking to rescind an order of removal in absentia to prove with sufficient credible evidence that he or she did not actually received the notice of the scheduled hearing. Note further that depending on the particular time in which the in absentia order of removal was entered against the noncitizen, different rules will apply as to how DHS was required to serve the notice (by regular or certified mail) with the required notice of time, date and address of the immigration court and different sets of rules apply as to what may constitute a sufficient showing for purposes of successfully proving that reopening is factually and legally warranted.
For more detailed information on the various governing rules involving motions to rescind orders of removal and the various administrative decisions upholding these different rules mentioned above, click on the link immediately below to go directly to the Judge's Benchbook for your perusal: