Dear Atty. Lou,
I am writing you on behalf of my cousin who is now incarcerated here for immigration violation. My cousin entered the United States 15 years ago with a visitor visa. She was approached by an immigration consultant upon her arrival and filed an application for political asylum. After one week, she received an employment authorization card. She never heard from the immigration consultant again and I was told that she paid several thousands of dollars for the employment card which was never renewed.
Five years ago, my cousin met her US citizen fiancé but never got married. No petition was ever filed by her fiancé until they separated last year. She now is living with her long time friend, Mario. A petition was filed by Mario also a US citizen. At the time of their interview, my cousin was taken into custody by the Immigration and Customs Enforcement. She was informed that she had a prior deportation order in 1997 and that this Order is final and enforceable. After the interview, she was taken into custody by the ICE agent and now will have a hearing next week. What are her chances that she is going to be released? Will she be deported right away?
Primo
Dear Primo,
I understand your concerns about your cousin. There are quite a number individuals who had prior deportation orders without them knowing that they had a case with the immigration courts. I am referring to those who paid substantial amount of money to consultants or acquaintances to get their immigration papers fixed. It turned out that these consultants or acquaintances filed fraudulent documentation before the immigration office resulting in deportation or removal cases against their victims.
To address your first question, the ICE agents took your cousin into custody because she had a final order of deportation. This is one of the many classes of immigrants who are put into mandatory detention. Her case must be re-opened before the immigration court in order that she may raise her relief/defense during a hearing. The re-opening of the case is done by filing a Motion to Re open in the court that rendered the decision on her case. As soon as it is re-opened, she may request then that she be released either on bail or on her own recognizance.
It is important to know that not all cases before immigration court are re-opened. A consultation with a legal professional is always advisable to determine whether or not her case may be re-opened. Assuming based on your information that she was not served notice in regards to the hearing of her case, she may ask that her in absentia removal/deportation be rescinded.
There are two main situations where individuals who were ordered removed or deported in absentia can reopen their cases: (1) they did not receive notice of the hearing, and (2) they did not appear at their hearing because of exceptional circumstances.
In order to prevail on their motion to reopen for those who claim that they did not receive notices of hearing they should be award of regulations in effect at the time their immigration case was pending. Before June 13, 1992, the regulation provided that service of the Order to Show Cause (OSC) could be accomplished either by personal service or by routine service. 8 C.F.R. § 242.1(c). If the OSC was filed between June 13, 1992 and April 1, 1997, the OSC and all notices of hearing must have been served in person or by certified mail to the respondent or the attorney of record, if any. INA § 242B(a)(1), (2) (pre-IIRIRA, April 1997). On or after April 1997,like the OSC, the Notice to Appear (NTA) may be served in person or by mail, but there is no requirement that the NTA be mailed by certified mail. INA § 239(c). Regular mail is sufficient. Consequently, signatures of receipt are not required.
If your cousin’s deportation case was pending before April 2007, then there must be proof that she was served in person or by certified mail. Failure on the part of the Immigration Service to notify her through personal service or certified mail will warrant a re-opening of her case. This will afford her a chance to be heard and she may ask that her deportation be automatically stayed.
I hope this information is helpful to you.
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, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon 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 can submit questions to law@tancinco.com)
