Opinion

Were you ordered removed/deported?

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

February 13, 2022 | 12:00am

Were you ever ordered deported/removed in absentia (meaning “in your absence”) because you did not attend an immigration court hearing, either because you did not show up, or were unaware of the hearing and the judge went ahead and ordered you removed/deported?

There could be good news for certain people with deportation/removal orders. On Feb. 4, 2022 the Ninth Circuit Court of Appeals (which is one level below the US Supreme Court) ruled that “non-citizens must receive a Notice to Appear in a single document specifying the time and date of the non-citizen’s removal proceedings, otherwise any in absentia removal order directed at the noncitizen is subject to rescission…”

This ruling is important because, in the past, the Department of Homeland Security (DHS) would issue Notices to Appear (NTA), placing a person in removal/deportation based on specified immigration violations, but the NTA did not include the date and time of the hearing. Instead, the NTA would indicate “to be determined,” or TBD. DHS or the immigration court would later send a second notice that would include the time and date of the hearing. However, for whatever reason, the noncitizen did not show up for the hearing, but the Immigration Judge (IJ) went ahead and conducted the hearing and ordered the noncitizen deported/removed in their absence.

The Ninth Circuit ruled that the original NTA must include the time and date of the hearing, otherwise it is defective. “[T]he government must provide all statutorily required information in a single notice to appear… for all removal proceedings that require notice…” A subsequent notice specifying the date and time the hearing could not cure/correct the original defective NTA.

In that Ninth Circuit case, DHS did not provide the noncitizen with a “statutorily compliant” notice before his removal hearing, in that the original NTA did not include the date and time of the hearing. Instead, the immigration court later sent several hearing notices to the noncitizen’s listed address, which was his friend’s house. But the friend never bothered to forward those hearing notices to the noncitizen, and he was ordered deported/removed.

However, because the original NTA was defective (because it did not specify the date and time of the hearing), the noncitizen was able to rescind or cancel his deportation order.

If this situation applies to you, where your original NTA did not specify the time and date of your hearing, and you were later ordered deported/removed, you should consult with an attorney about your options, including rescinding or canceling your removal order.

However, it is important that if you’re going to seek rescission of your removal order, you also have in hand some other form of relief, or way to get a green card, such as a spousal petition, or other petition with a current priority date.

Otherwise, if you get the deportation order rescinded, but do not have another way to get a green card, you could be placed right back in deportation/removal, with proper notice.

But this is still great news and a favorable development for so many people who may have had a petition, application, asylum case denied and then were placed in deportation, and were ordered deported/removed based on a defective NTA.

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