Motion to Reopen Deportation Order Granted

About two months ago, a new client came to our office for a consultation regarding his green card application which had been denied by the USCIS. His case had been denied due to a prior order of deportation by the Immigration Court although he was previously unaware that he had ever been in court proceedings. We immediately filed a Freedom of Information Act Request with the Executive Office for Immigration Review and the USCIS to determine why our client had been placed into deportation proceedings without his knowledge. After obtaining his file, we learned that our client had been ordered removed from the United States in absentia and that his Notice to Appear and subsequent court hearing notices had been improperly sent by regular mail to an address of a friend that he provided at the airport when he first arrived in the United States. Therefore, our client never received notice that he was in deportation proceedings and did not attend his court hearing because he did not know he was in court proceedings. Our client was scheduled for an interview at the Philadelphia USCIS Office on his wife’s I-130 petition, which was still pending despite the denial of his green card application. The interview was scheduled only 4 days after we received a complete copy of his Immigration Court file. Because he had a final order of deportation/removal, we informed our client that he would likely be detained when he attended his interview and that he could be sent to an immigration detention center unless we were able to file a motion to reopen his case prior to the interview. After researching the matter, we determined that an appeals court case supported our position that our client’s final in absentia removal order should be reopened because the Notice to Appear and subsequent notices of court hearings had been improperly sent to him by regular mail at an address at which he had never resided. We immediately began working on the motion to reopen and assisting our client in obtaining affidavits from witnesses to confirm that he had not received any communication from Immigration and Customs Enforcement (ICE) or the Court and that he had never lived at the address used in the Notice to Appear and subsequent court hearing notices. We were able to file our client’s motion to reopen the day before his interview, and obtain a receipt from the Philadelphia Immigration Court to prove to the ICE officers that a motion to reopen our client’s in absentia removal order was pending with the Court and that an automatic stay of removal had taken effect. Under the law, an immigrant who files a motion to reopen an in absentia removal order based on failure to receive notice of a removal hearing is automatically granted a “stay of removal” and for that reason, may not be deported pending the court’s decision on the motion. The next day, we accompanied our client and his wife to the I-130 interview. As we had explained to our client, ICE officials from the Detention and Removal Office came to the interview due to his final order of deportation/removal from the Philadelphia Immigration Court. We immediately handed them a copy of the motion to reopen and the receipt from the court, noting to them that an automatic stay of removal was in effect and that our client could not be deported. The officers took our client to obtain his fingerprints to confirm that he had no criminal record and proceeded to place him under a “order of supervision” which meant that he could return home with his wife rather than be detained and sent to an immigration detention facility. The government’s immigration lawyers filed a response to our motion, agreeing with the arguments in our motion, and informing the Philadelphia Immigration Court that they did not oppose our motion to reopen. Shortly thereafter, the Court granted our motion, making our client eligible to reapply for a green card and meaning that he is no longer under a final order of deportation. In a case like this, where a motion to reopen an immigration court case must be submitted on short notice to prevent a client’s arrest, it is crucial that the motion be properly prepared in accordance with the Immigration Court’s Practice Manual, that every factual assertion contained therein be thoroughly documented with documentary evidence and/or affidavits from qualified witnesses, and that the motion be properly filed with the Court to avoid it being rejected due to failure to comply with proper procedure.

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