Deportation Rescinded Due to Lack of Notice
March 31, 2010
Deportation or removal is a harsh punishment because it expels an alien from the U.S. even if his/her family and business are left behind. But aliens under removal proceedings have rights and one of them is the right to receive a hearing notice.
Removal may be ordered in absentia. This means that if the alien who has been notified of the hearing does not attend such hearing, an immigration judge may order removal in his/her absence.
What kind of notice is required for a removal in absentia to be valid? Does the alien have to be notified personally? If he/she moves and the notice was sent to an old address, is there a valid notification? What if the address given was incorrect? If the alien has an attorney, does the attorney have to be notified?
In a recent case before the Court of Appeals for the Ninth Circuit located in San Francisco, California, the removal order against an alien was rescinded because the alien did not receive the notice of hearing and his attorney was not notified of the time and place of the hearing.
The alien in this case had been detained after he attempted to enter the U.S. with a valid foreign passport but with an altered visa. While he was detained, he was personally served with a notice to appear (NTA) and the immigration court personally served him with a hearing notice.
The hearing notice specifically stated that he had the right to hire an attorney and that his failure to appear at the scheduled hearing could lead to his removal in absentia.
After the NTA and the notice of hearing were received by him and before the scheduled hearing, he retained an attorney to represent him. The attorney immediately notified the immigration court of his representation and filed a notice of appearance. The attorney succeeded in his motion to change the hearing venue from San Pedro to Los Angeles where the alien’s grandparents lived.
Prior to his release from detention upon posting a bond, the alien completed three forms that required him to give his address where he could be reached. He provided the court the street address of his grandparents in all the three forms but in two of the forms, he did not indicate an apartment number and the third form indicated an incorrect apartment number.
The immigration court later sent a hearing notice to the address that did not include an apartment number. The alien did not receive the hearing notice and in fact the notice was returned to the court 8 days after the scheduled hearing date. The hearing notice was never sent to his attorney.
Because the alien failed to appear at the hearing, the immigration judge ordered his removal in absentia. His attorney received a copy of the removal order.
The attorney immediately moved to reopen the removal order on the ground that he never received notice of the hearing and therefore he did not have the opportunity to present an asylum case for his client.
The immigration judge denied the motion on the ground that notice had been sent to the alien but to the address without the apartment number. The Board of Immigration Appeals reaffirmed the denial of the motion so the attorney petitioned the Court of Appeals for review.
The Court of Appeals held that the in absentia removal order must be rescinded because the alien’s attorney was not served with the hearing notice.