Immigration Court - Motions to Reopen for Lack of Notice to Respondent
When Immigration authorities want to send an immigrant to Court for Removal Proceedings, they issue a Notice To Appear and Hearing Notice. Receipt of the Notices obligate an immigrant to go to Court. Issues arise when receipt is not confirmed, and often lead to in absentia order of removal.
Proper Service of the Notice to AppearICE may mail a Notice to Appear to the last address on file for respondent. The notice of hearing must state the time and place of the proceedings and must inform the respondent of the consequences of failing to attend the hearing. The key question is whether the alien actually received the notice. The BIA has held that where service of a notice of hearing is sent by certified mail, a "strong presumption" of effective service arises which may be rebutted only by substantial and probative evidence of non-delivery or improper delivery. Since 1997, however, hearing notices may be served by regular mail. A weaker presumption of receipt applies when such a notice is sent by regular mail.
Proving that Service of the NTA and Hearing Notice were ImproperSubmission of an affidavit by an alien claiming non-receipt of a notice, or a responsible person residing at her address, along with circumstantial evidence corroborating the alien's claims may ordinarily be sufficient to raise a factual issue requiring an evidentiary hearing before the IJ. If there is enough evidence to overcome the presumption of effective service without a sworn affidavit, the absence of such affidavit is not fatal to petitioner's motion to reopen for non-receipt of notice.
In Absentia Order of RemovalAn immigrant who has been ordered to attend removal proceedings in immigration court must attend those proceedings. Any absence, non-appearance, or late appearance to an court hearing where the immigrant is supposed to attend CAN - and often WILL - result in an order of removal issued upon them. There are exceptions to the mandatory appearance of alien at proceedings, such as where their attorney asks for the immigrant's appearance to be waived for a valid reason - such as school or long distances that the immigrant must travel. Fortunately, in absentia orders of removal can be undone by a motion to reopen where the immigrant can show that service of the NTA and / Hearing notice was improper, and that the alien did not receive it.
Motions to Reopen cases where an Immigrant was ordered removed in absentia due to lack of noticeMotions to Reopen are the instruments immigration attorneys use to reopen an immigrants case, to get them back in court, and to apply for a form of relief after the immigrant has been ordered removed. The Immigration and Nationality Act specifically states that an in absentia order of removal may be rescinded "upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice ... and the failure to appear was through no fault of the alien. It helps to include in the motion to reopen a basis for new relief, such as marriage to a US citizen, asylum, cancellation of removal, and so forth. Prima facie eligibility for the desired relief should be explained and documented with exhibits to support the claim for relief.