In Absentia Removal Order
When a person receives proper notice of a removal hearing or proceedings against her, and fails, refuses or neglects to attend, such a person would in all likelihood be ordered removed in absentia.
Where an in absentia order of removal is entered against someone, it carries some adverse immigration consequences over and beyond a regular order of removal.
Usually, whereas one can appeal against an order of removal, there is no right of appeal against an in absentia order of removal. One may only file a motion to reopen to rescind such an order under certain circumstances.
Also where such failure to appear was subsequent to one receiving the oral notices called for under the law, such person is in addition to having the in absentia order entered against them, also barred for 10 years from eligibility for many discretionary reliefs such as cancellation, and adjustment of status.
MOTION TO REOPEN TO RESCIND AN IN ABSENTIA ORDER[1]
The law provides limited circumstances under which one may apply to have an in absentia order of removal rescinded. There are two main circumstances:
- Where the failure to appear was because of exceptional circumstances and the motion to reopen is filed within 180 days after issuance of the in absentia order of removal. Exceptional circumstances in this situation refer to battery or extreme cruelty to the person, their child or their parent. It also includes the person’s serious illness, or the death of a spouse, child or parent. There may be other situations that Courts have held amount to exceptional circumstances and one must consult an Immigration Attorney to look at her particular set of circumstances.
Whatever one does under this reason must be done within 180 days, unless in particular situations where the Courts may apply equitable tolling. Even then, diligence must be shown. In the 11th Circuit, there may be no tolling.
- One can apply to have such order rescinded at any time, if she can be show that she did not receive notice in accordance with law, or because she was in federal or state custody and the failure to appear was not her fault.
The filing of such motion triggers an automatic stay of removal pending conclusion of the motion by the Immigration Court.
Lastly, in the context of asylum,witholding and/or CAT, an in absentia order of removal may be rescinded/reopened based on changed circumstances arising consequent to changed country conditions in the country to which removal has been ordered, where evidence of such is material, and was unavailable, and could not be discovered or presented at the previous proceeding.
