A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, July 10, 2015

Removal Orders Can be Reopened Despite Failure to Report Address Change

A person in removal proceedings moved to a new address, but he keeps his mailing address the same, and the immigration court has that address.  In this situation, even if the court hearing notices sent to his mailing address are returned as "attempted, addressee unknown," the immigration judge may not categorically order his deportation in his absence, according to a recent decision by the First Circuit Court of Appeals. (Renaut v. Lynch, 6/4/15)

The respondent in this case was living with his friend and used his address as his own.  However, a few years later, the respondent moved out to another address. After his move, he still kept on using his friend's address.  Later on, the court's hearing notices sent to this address were returned as "attempted, addressee unknown".  It appeared that his friend also moved away afterwards.  Eight years later, the respondent married a U.S. citizen and attempted to remove his removal case so that he may apply for permanent residence status.

Both the immigration judge (IJ) and BIA held that he could not reopen his case because he failed to notify the immigration court his new address.  The IJ and BIA held that his failure to report his change of address amounted to evasion of hearing notice, and therefore his motion could not be reopened.

The Appellate Court disagreed, holding that an IJ may rescind an in absentia removal order if the respondent demonstrates that he failed to receive his court notice.  While the issue to consider in entering in absentia order is whether the notice is properly mailed, the focus is shifted to whether the respondent actually received the hearing notice in deciding on a motion to reopen.

The Appellate Court also could not find any legal basis to support the proposition that the respondent
 was required to provide a residential address, as opposed to just a valid mailing address. The Court observied that the Notice to Appear actually advised the respondent that he was "required to provide . . . your full mailing address."   The Notice of Appear does not  specifically mention a residential or physical address.

This issue is important because both the IJ and BIA concluded that the respondent evaded delivery of the court hearing notice by his failure to update his physical address.  And such an evasion is the basis for the denial of his motion to reopen.  The Appellate Court noted that there is insufficient factual basis in the record to further investigate this issue.  Therefore, it decided to remand the case to the immigration court to re-consider the motion to reopen again.

This decision is important as many removal orders (deportation orders) are entered every year due to address changes.  It is also important to understand that this decision does not mean that the respondent's case will definitely be reopened at the end; it merely provides another way for respondents with in absentia orders to attempt to reopen their cases.

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