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Immigration Law Associates, PC

Sanchez-Herbert – Failure to Appear/In Absentia Complications

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By: Helena Coric*

An overwhelming amount of sources discuss the backlog problems our immigration system is facing. In deportation proceedings, the difficulties become more apparent as hearings are delayed and one is left to simply wait it out. For those individuals that feel they do not have a strong case or lack the funds for basic daily living or can no longer stand the years of separation from their spouses, children or parents this is an abomination. Some may decide to just leave and avoid what they deem the inevitable. This is where the confusion arises as to how one should proceed with a current immigration case.

For example, in the Matter of Ramiro SANCHEZ-HERBERT, the Immigration Judge agreed to terminate the proceedings. Yet, the Department of Homeland Security objected to this and filed an appeal that the judge should have still issued an order for deportation even if the immigrant had already left the US. Debate exists now as to whether the Judge should have instead granted the DHS the ability to proceed with an “in absentia” hearing. The Department of Homeland Security and Board of Immigration Appeals both agree that the judge should have ordered the immigrant deported, even if the individual had already left United States soil. Clearly, the complications and anxieties of the immigration process are further compounded by bureaucratic controversies.

The “in absentia” order of removal makes an immigrant ineligible to return to the United States for ten years. This is regardless of whether the immigrant came to the country legally or not. An “in absentia” hearing requires the Department of Homeland Security to collect facts and evidence to be able to meet its burden for the Judge to issue an order of removal. Despite, the bureaucratic matters at hand, logically it seems unfair to expect an individual to stay in the United States without the ability to work, travel, have identity or status. Consider the anxiety they are facing: no ability to work or make any money, threatened by their illegal status, waiting for a hearing before an Immigration Court that is backlogged, and finally, the constant worst-case scenario looming in their minds-deportation to a country that they may have no more ties to or that they left years ago is evidently not in their best interest.

Another crucial factor in “in absentia” hearing is the procedural aspect of a notice to appear. This element of the process is when the government begins the path towards removing a non-immigrant from the United States. This goes back to the initial decision in this case that termination of pending proceedings is not allowed if the alien in question has indeed received proper notice of his hearing. This begins an entirely new controversy due to the complications that surround the issuance of notices to appear.

Some of the difficulties of the notice to appear seem very basic and appear to be common sense, yet evidently mistakes occur and people sacrifice their lives in the United States for simple mistakes. For one, countless times these notices are mailed to incorrect addresses. This means that the alien may have been deported and not even be aware. While DHS and the court are preparing deportation proceedings and building their case because they believe the alien has ignored their requests for whatever reason. Often, the person is not even aware of the deportation order as he may have moved multiple times as he moves from friend to friend who will lodge him at little or no cost. At the same time, you run into the individuals who blatantly ignore the notice expecting it to simply disappear. Facing language barriers and communication barriers also may complicate the process. In the case of minors, the notice to appear must be served upon the responsible adult in whose custody the child resides. In some instances, the notice of counsel is sufficient, but this may also bring into question as to how effective the assistance of counsel is under Lozada or simply due to overwhelming address changes.

For those individuals that somehow avoid language barriers and actually receive the notice to appear at the correct address, all is not resolved. While still risking deportation, these notices typically include wait times for a court appearance from anywhere from a few days to as much as several years. In addition, oftentimes the document does not include an actual location, rather simply a date and time; complicating the process further for those that may need to commute and find out last minute.

A final point concerns the matter of criminal cases. Besides the standard controversies already outlined, in a criminal case ICE has the authority to decide whether to issue a Notice to Appear. The USCIS will not issue an NTA if ICE declines to issue the notice. Criminal aliens are a top immigration enforcement objective of the government due to egregious public safety cases particularly as outlined in the December 21, 2012 memo. It is long overdue for immigration to change their notice requirements to be more in tune with the reality of receiving actual notice.

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*Helena Coric is an Intern at Beach-Oswald Immigration Law Associates, P.C.

Filed under: Immigration Issues

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