LEGAL GUIDE
Written by attorney Nicklaus James Misiti | Jan 25, 2013

Successful Motion to Reopen in New York City Immigration Court. Call 212 537 4407 now!

Our client came into our office distraught because she had just found out that she had a deportation order from three years ago she did not know about.

Immigration claimed they had sent her notice that she was to appear for a removal hearing but she had never received it. Since she never received her notice she did not go and the judge ordered her removed in absentia or in her absence.

She was now married to a US citizen with two children and wanted to begin the process of filing for her green card but upon finding out that she had a removal order she thought it would be impossible.

We analyzed her case and found strong evidence that she was not properly notified of her court date. The law states that an in absentia order may be rescinded only if: 1) a motion to reopen is filed within 180 days of the date of the order and the person demonstrates there were exceptional circumstance; or 2) a motion to reopen is filed at any time and the person can demonstrate that failure to appear was due to lack of proper notice in accordance with INA section 239 or that s/he was in state or federal custody and the failure to appear was through no fault of his her own.

Exceptional circumstances are defined as circumstances “beyond the control of the alien" such as battery or extreme cruelty to the alien or any child or parent of the alien …" (See INA240(e)).

A respondent can move to reopen a hearing on a showing of reasonable cause for their absences. Matter of Haim, 19 I&N Dec. 641 (BIA 1988). In order to reopen, the respondent need not demonstrate a prima facie case for relief nor exceptional circumstances for failure to appear. A showing of reasonable cause is sufficient. Matter of Ruiz, 20 I&N Dec. 91 (BIA 1989); Matter of Haim, supra. Also a respondent is not required to show prejudice in order to rescind an order of deportation entered in absentia. Matter of Grijalva, 21 I&N Dec. 472, 473 n.2 (BIA 1996).

Our firm quickly went to work drafting a motion to reopen arguing that there were exceptional circumstances and that she was not given proper notice of her hearing. The judge agreed and reopened the case. Upon finding out she was married to a US citizen, the trial attorney agreed to close her removal proceeding and allow her to apply for her lawful status through her marriage. We filed the application and 6 months later she was a lawful permanent resident.

Additional resources provided by the author

Contact the law offices of Nicklaus Misiti, at 212 537 4407 or via their website at www.misitiglboal.com. His firm is experienced with all types of immigration matters particularly motions to reopen and/or appeals. His firm is headquartered in New York City and handles immigration cases throughout the United States.

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