Failure to appear for a scheduled removal hearing means that the Immigration Judge (IJ) will most likely have ordered you to be removed in absentia (without your presence in court). If the government can show that you were given written notice of the hearing, the IJ must issue a removal order.
This means that if you are ever “caught” by Immigration and Customs Enforcement (ICE), it can use that removal order to take you into custody and deport you from the U.S. without letting you see an IJ first. Additionally, an Order of Removal in absentia makes you inadmissible and ineligible for a number of forms of relief from removal, such as voluntary departure, cancellation of removal, and adjustment or change of status, for a period of ten years after the date of the removal order. (See I.N.A. § 212(a)(9).)
So, what can be done if you have been ordered removed in absentia? You can, in limited circumstances, file a Motion to Reopen your removal proceedings, or you can ask ICE for discretionary relief.
Keep reading to learn more about these options. It is, however, highly advisable to retain an experienced immigration attorney to help you navigate this tricky area of immigration law.
If you were ordered removed from the U.S. in absentia, you might be able to have your removal proceedings reopened. If successful with that request, you will be rescheduled for a new hearing in the Immigration Court and will be able to apply for any form of relief for which you are eligible. You can file a Motion to Reopen if one of the following circumstances applies to you:
Once you file a Motion to Reopen, an automatic stay of your deportation will remain in effect until the IJ issues a decision on your motion. This means that you cannot be removed from the country unless the IJ denies your Motion to Reopen.
There are no time restrictions for filing a Motion to Reopen with the Immigration Court if you did not receive proper notice of the hearing. For example, if the NTA was mailed to an incorrect address or you were in federal or state custody, you might be successful in reopening your case if the failure to appear was not your fault. There is no filing fee for submitting a Motion to Reopen based upon failure to receive proper notice.
When the NTA or Notice of Hearing is sent by regular mail to your last known address, there is a presumption that it was actually delivered there. The government need not send it by certified mail. It is your obligation to inform the court of any change of address within five days of moving. If you were notified of this obligation (which is contained in the NTA), and failed to do so, then missed a scheduled hearing, you could be faulted for failing to appear. Review your NTA to ensure that your address is listed correctly and does not contain any typos.
To overcome the presumption of delivery, you have to submit any relevant evidence showing that you did not receive the NTA. Evidence can include your affidavit, affidavits from others who know about the situation, and proof of troubles with mail delivery at your residence. If applicable, you can also demonstrate that you have attended previous hearings and have pending applications that would indicate an incentive for you to appear for your hearing.
Additionally, if you did not receive notice of your hearing, but your attorney of record did and failed to inform you of the hearing date, you might be able to reopen your case based upon ineffective assistance of counsel. For more on this, see What to Do If You Suspect Your Immigration Attorney Has Made Mistakes in Your Case.
You may ask the IJ to reopen removal proceedings if your failure to appear for your hearing was due to exceptional circumstances. Exceptional circumstances can be, for example, the serious illness or death of a spouse, child, or parent. In such a case, however, you must file the Motion to Reopen within 180 days of the issuance of the order of removal.
When filing a Motion to Reopen based upon exceptional circumstances, there is a filing fee ($110 as of late 2019). This fee must be paid before an Immigration Judge will consider your Motion. If you cannot afford the filing fee, you can request a waiver.
If you are going to file a Motion to Reopen based upon exceptional circumstances, it is important to include supporting documents, such as affidavits or sworn statements, to establish the circumstances and explain to the IJ why you had to miss your hearing and why you could not contact the court before your hearing.
If you believe you received an in absentia Order of Removal in error, be sure to document this, as well. For example, if you arrived late to the hearing due to circumstances beyond your control, such as car problems or delays with public transit, and were denied a hearing later in the day, you should include all available evidence.
If you do not qualify to file a Motion to Reopen with the Immigration Court, you may apply for discretionary relief from ICE. There are two types of discretionary relief applications available:
With each of these types of relief, you will still have an in absentia removal order on your record. However, if you are granted discretionary relief, ICE agrees not to deport you during the time specified on your stay of removal or deferred action.
Both these forms of discretionary relief are difficult to qualify for and can be terminated by ICE at any time. For example, if you are convicted of a crime after being granted this relief, it is extremely likely that ICE would terminate your stay of removal or deferred action.
To request a stay of removal, one must use Form I-246, Application for a Stay of Deportation or Removal, available from the ICE website. Typically, it must be filed in person at one's local Enforcement and Removal Operations office. (For a list of offices, see the Enforcement and Removal Operations Field Office page of the ICE website.)
Along with the form, you will need to include supporting evidence showing why you need or wish to remain in the U.S. for additional time. You will need to bring your passport, birth certificates, and information related to your arrest record.
ICE can stay your removal for a maximum of one year. However, the stay can be renewed an indefinite amount of times.
If your stay is granted, you will be placed on an order of supervision, meaning that ICE can require you to “check in” occasionally. Those granted a stay of removal are allowed to remain in the U.S. for the amount of time authorized by ICE and can even apply for a work permit. Again, however, you would want an attorney's help with this; under the Trump Administration, ICE became very unlikely to grant this form of relief, and arrested many people during their check-ins. Hopefully the Biden Harris administration will return to a more normal policy, but changing agency attitudes and culture takes time.
Deferred action (or prosecutorial discretion) is similar to a stay of removal in that it you request it directly from ICE, it is applicable for a short time, and you may apply for work authorization. Deferred action is typically granted when there are compelling humanitarian considerations that merit giving you additional time in the United States or if you are not an enforcement priority for ICE removal.
For example, if you or a close family member is seriously ill and can only receive proper medical treatment in the U.S., you might have a good case for deferred action. Deferred action can be granted for up to two years at a time, but like a stay of removal, it can be renewed indefinitely.
Get an attorney's help if you'd like to request this, too.