Do you have a deportation order because you did not attend the hearing? Did you only find this out years after it happened? Did you never get notice when the hearing was scheduled? It is possible to file a Motion to Reopen the In Absentia hearing to get it reopened so that if granted, you will no longer have a deportation order and will be able to go back to Immigration Court in order to fight your case and apply for the relief that qualify for under U.S. Immigration Law. This will take place where the absentia order of removal or deportation was entered. A motion to reopen based on lack of proper notice can be filed at any time. Even after a person has left the United States.
A motion to reopen requesting that an in absentia order be rescinded asks the Immigration Judge to consider the reasons why the you did not appear. If you actually have such an order, you should note that in removal proceedings, an in absentia order may be rescinded only upon the granting of a motion to reopen. The Board of Immigration Appeals does not have jurisdiction to consider direct appeals of in absentia orders in removal proceedings. This motion to reopen to rescind an in absentia order must demonstrate that the failure to appear was because of exceptional circumstances; the failure to appear was because the alien did not receive proper notice; or the failure to appear was because the alien was in federal or state custody and the failure to appear was through no fault of the alien.
The Immigration and Nationality Act (INA) permits an immigration judge to order a person removed in absentia if the government establishes by clear, unequivocal and convincing evidence that proper written notice was provided and that the person is removable. There are two main situations where individuals who were ordered removed or deported in absentia can reopen their cases: (1) they did not receive notice of the hearing, and (2) they did not appear at their hearing because of exceptional circumstances. This sample Motion to Reopen shows you how to meet all these requirements.
This particular sample is an actual Petition for this particular preference where it is filed inside the U.S. with all of the various examples and supporting evidence. It assumes that the basic requirements are met such as the beneficiary being the single son or daughter of a Lawful Permanent Resident parent. This family petition is under what is known as the 2nd preference. Note that our library also has all the other types of preference petitions for your perusal. Note that our library includes not only this family petition and other family preference petitions, but nonimmigrant visa petitions such as the L-1A Intracompany Transferee Petition and other types of applications and petitions such as the Humanitarian Reinstatement application, multiple types of work-permits such as the H-1B Specialty Occupation Visa Petition, the O-1 Extraordinary Alien Petition, PERM examples, I-140 Applications and many more. If you enjoy this family 2nd preference petition and it makes your life easier, then come back and try the other immigration applications and petitions.
Remember with this petition you have to file it at the Immigration Court that made the decision ordering you deported. Normally when it is filed, it will take a few months to get the decision. If granted, you will be given a hearing date and then you can submit applications for what you would have applied for in the first place such as asylum or adjustment of status or whatever relief is available.
We certainly hope you find this petition useful and helpful and hope for the best immigration experience you can have. We do have petitions on every subject area of immigration, and you might look at those if needed as well. If you do need to actually have a consultation, you can call our U.S. Immigration Law office at 562-495-0554 for an initial free consultation to determine what must be done to help you and your family.