Dear Atty. Lou,
My cousin Anne had a denied adjustment of status application. Before their interview, she separated from his US citizen spouse because of emotional and verbal abuse . His husband refused to appear for the interview and my cousin Anne went out of State without notifying the US Citizenship and Immigration Service of her change of address.
Without Anne’s knowledge she was ordered removed from the United States in absentia on January 15, 2010, after failing to appear at a hearing. Apparently, she was sent a Notice to Appear for a hearing at her former address. She never received the notice. Her lawyer filed a motion to reopen on February 10, 2010, but the Immigration Judge denied this motion. Does Anne have a chance of staying in the US? Recently, she reconciled with her abusive husband.
MGB
Dear MGB,
There is a provision in the immigration law that requires the non-citizens to notify the US Citizenship and Immigration Services of their change of address. There are legal consequences for failure to notify the USCIS of the change in address which include fine.
For an individual in removal/deportation proceedings, a Notice to Appear is sent to him so that he will be notified of the date of hearing. If the non citizen fails to notify the USCIS of his change of address, this Notice to Appear will be mailed at last known address of the non citizen. In this case, non receipt of the notice will still render the USCIS service valid and the non appearance during the hearing will result in removal order. This is called an in absentia order of removal similar to a judgment by default for failure to appear.
It is clear that there is an affirmative obligation on the part of the non-citizen to notify the USCIS of the change of address. In the case of Dominguez v. U.S. Att’y Gen., 284 F.3d 1258, 1259-60 (11th Cir. 2002) the court held that notice is statutorily sufficient if the NTA is sent to the most recent address provided by the petitioner, even if the petitioner has moved. This is the rule that is generally applied.
There are also cases that provided the opposite result such as the recent case of Matter of Jorge Anyelo, 25 I&N Dec.337 (BIA 2010) decided on September 13, 2010. The Court ruled that individuals cannot be ordered removed or deported in absentia until they are warned that they may be ordered removed or deported in absentia as a consequence of failing to inform the government of the of a change of address. The court applied the ruling in the case of in Matter of G-Y-R-,23 I&N Dec. 181, 189-90 (BIA 2001). This is consistent with Section 239(a) of the INA which requires the notice to contain warnings and advisals that the alien must immediately provide or have provided.
In the case of Anne, despite the non appearance for failure to appear, she may file a Motion to Rescind the in-absentia order of removal based on the ruling of the case in the Matter of Anyelo and Matter of G-Y-R. The law still requires notice of the warnings and advisals and Anne was not provided such notice. Hence, she stands a good chance of having her in-absentia order rescinded. Once it is rescinded, she may request that her adjustment of status based on her marriage to her US citizen spouse be renewed in court so she may be granted her green card.
I hope this information is helpful.
Atty. Lou
(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com)
