Written by attorney Steven Sahag Vosbikian

Consequences of Failing to Appear before the Immigration Court – in absentia Orders of Removal

Consequences of Failing to Appear before the Immigration Court – in absentia orders of removal

In this excerpt I discuss the consequences of failing to appear before the Immigration Court, what an "in absentia" removal order is, and the negative impact it has on people who leave the U.S. by force or will.

I have been served with a NTA – what is it?

NTA stands for “Notice to Appear." It is issued by the U.S. Department of Homeland Security (DHS) and charges aliens as “removable” or “inadmissible,” citing specific sections of the Immigration and Nationality Act (INA). The NTA typically indicates what date and time one is required to appear before the Court.

I was served with a NTA, but my friends told me not to go to Court – what should I do?

Many individuals rely on the advice of their friends. It is best to seek the advice of an experienced immigration attorney. Failure to appear before the Immigration Court after having been properly served with a NTA can have a devastating impact. Those who fail to appear are “removed" in their absence. This is referred to as removal "in absentia."

I was served with a NTA, but failed to appear for my hearing. I was removed in absentia and never left the United States. My spouse is a U.S. citizen and I have three (3) children. Can't I get my green card?

This is a common set of facts. The individual in the above hypothetical can receive his/her green card after certain criteria are met. He/she would need to depart the United States and reenter with a valid visa. Upon the alien’s departure, however, a ground of inadmissibility arises under INA § 212(a)(6)(B). Grounds of inadmissibility are immigration laws “excluding" or “keeping out" those who seek to enter the United States. This particular ground of inadmissibility applies to those who have failed to appear at their scheduled hearing. Under INA § 212(a)(6)(B), such individual are inadmissible for a period of five (5) years. There is NO WAIVER to excuse the five (5) year waiting time period. Assuming this is the only ground of inadmissibility, this individual could receive his/her lawful permanent residence after waiting outside the U.S. for five (5) years!

What else is significant to mention about in absentia removal orders?

Once an in absentia order has been entered, the Immigration Court no longer maintains jurisdiction over the alien. Jurisdiction instead lies with Immigration Customs & Enforcement (ICE). In order for the Court to gain jurisdiction, a Motion to Reopen must be filed with the Immigration Court.

In short, if you have been served with a NTA, make sure you appear in Court on the designated date and time. The consequences of failing to appear are harsh. If you have been served with a NTA consider consulting with an experienced immigration attorney.

Additional resources provided by the author

INA § 212(a)(B)(i)(II); INA § 212(a)(6)(B)

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