Court rules aliens can reopen deportation case ‘at any time’ if they never received notice of hearing

In a recent case, the 9th Circuit Court of Appeals (which is one court level below the US Supreme Court), ruled that an alien could seek to reopen his asylum deportation case "at any time", if the alien never received notice of the deportation hearing.

This is a very important ruling for those who applied for political asylum, especially through a consultant, and years later, discover that they have an "in absentia" deportation order on their record, because they never received notice of the deportation hearing. So, when they try to get a green card through some other means (such as marriage to a citizen or employer’s petition), they cannot do so, because that deportation order is hanging over their heads.

In that 9th Circuit case, the alien applied for political asylum in 1995, with the assistance of an immigration consultant. The consultant listed the consultant’s own address as the mailing address for the alien, such that all of the INS’s notices went to the consultant’s address, instead of to the alien. One of the notices was the alien’s asylum interview. Because the interview notice went to the consultant (who did not forward it to the alien, or tell her about it), the alien did not attend the asylum interview.

The INS then commenced deportation proceedings against the alien, sending the Order to Show Cause (OSC) to the consultant’s address. Once again, the consultant did not tell the alien about the OSC or the deportation hearing date. So, the alien had no knowledge she was in deportation and therefore did not attend the hearing.

Since the alien did not appear at her deportation hearing, the Immigration Judge (IJ) ordered her deported "in absentia", or in her absence.

Some time later, the alien found a way to get a green card and adjust status. When she was about to file the new adjustment case, she discovered the deportation order on her record. This was the first time she discovered that she had been ordered deported. She then filed a motion to reopen seven months after she became aware of the deportation order.

Ordinarily, when a person is ordered deported, he has a limited time to go back to court to have the case reopened or reconsidered, which is usually 30 to 90 days after the deportation order was entered. In this case, it was far beyond that time deadline. But there is another law that says that if the alien never received notice of the deportation hearing, the motion to reopen can be made "at any time".

The IJ, however, denied the motion to reopen because the alien waited seven months after learning of the deportation order before bringing the motion to reopen. The Board of Immigration Appeals (BIA) upheld the IJ’s ruling, and the alien appealed to the 9th Circuit.

The 9th Circuit pointed out that the applicable law states that an in absentia order may be rescinded "upon motion filed at any time if the alien demonstrates that the alien did not receive notice in accordance with" certain other sections of the law. There is nothing in the law that imposes a time limit or cut off period after the alien learns of the order in order to bring a motion to reopen. In fact, the Court pointed out that in another case, the alien had been able to bring a motion to reopen 10 years after being ordered deported, since the alien never received notice of that hearing, since "there is no statutory time limit for a motion to reopen to rescind an in absentia deportation order based on a claim that the alien did not receive proper notice of the scheduled hearing"

Since there was no time limit to bring a motion to reopen, the IJ abused his discretion in denying the motion just because it was made seven months after the alien learned about it.

I know that there were many people who applied for political asylum, and the consultant had all their mail and notices sent to the consultant’s address. Most of them were unaware that they were put in deportation, or that they were ordered deported. The deportation order blocks any ability to get a green card, even if an alien may have found another way to legalize his status, such as a good faith marriage or legitimate job sponsorship.

However, if the alien never received notice of the hearing, and is able to prove it, then there might be hope. Of course, if the alien did receive the notice, but was just too afraid to attend the hearing at the time, then this case would NOT apply to them. The "no time limit" for bringing a motion to reopen applies only to aliens who really and truly never received notice of their hearing.

If your situation is the same as that ruled upon by the court, then I would recommend that you seek the advice of a reputable attorney who can analyze your situation, and determine if you are legitimately eligible for this benefit or relief.

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