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.

BIA allows reopening of proceedings to apply for asylum based on changed country conditions

The BIA allows a Chinese national to reopen his removal case to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered, without having first to rescind a prior in absentia order of removal.  Matter of J-G-,  26 I&N Dec. 161 (BIA 2013).  The respondent was ordered deported previously because he failed to show up for his removal hearing.  After analyzing the relevant statutes, regulations and  legislative history, the Board concluded that the respondent may file a motion to reopen his case to apply for asylum and withholding of removal if he can prove that the country conditions have changed, the changes are material and were not available and could not have been discovered or presented at the time of previous hearing.
Further, normally a respondent may only file one motion to reopen after the conclusion of a removal case.  The BIA also held that this numerical limitation on filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1) (2013) does not apply when the respondent is seeking reopening to apply for asylum and withholding of removal based on changed country conditions.  Here the Chinese respondent based his motion on his conversion to Catholicism and his assertion that there has been increased persecution of the underground Catholic Church in China. 

Immigration and Customs Enforcement Sets Enforcement Priorities

A recent memorandum of the Immigration and Customs Enforcement (ICE), a branch of the Department of Homeland Security, places strong emphasis on the deportation of foreign nationals who are the subject of a final order of deportation. The December 8, 2009, memorandum, authored by Mr. John Morton, ICE Assistant Secretary, makes it clear that the agency’s core mission is the apprehension and removal of fugitive aliens. This memorandum sets up the agency’s priorities, goals, and expectations in terms of enforcement efforts and use of resources when dealing with these individuals.

“…[S]ound administration of the nation's immigration system depends on an efficient, fair, and meaningful removal process. As a result, it is the clear policy of this agency that final orders of removal should be enforced and that those who knowingly disobey or evade a final order of removal should be apprehended and removed,” according to the Assistant Secretary.

The ICE memorandum divides up enforcement efforts into three tiers as follows: Tier I Fugitive aliens (with final deportation orders). Tier 2 Previously removed aliens. Tier 3 Removable aliens convicted of crimes. Within each tier, individuals who post a threat to national security are given the highest priority, followed by foreigners who have been convicted of violent crimes or who otherwise pose a threat to the community.

Furthermore, when dealing with non-criminal deportable individuals, ICE officers are to consider other factors such as absentia orders and pending applications for relief before U.S. Citizenship and Immigration Services. Generally speaking foreigners who may have a chance of successfully reopening their cases and submitting relief applications from deportation are to be given lower priority unless there exists other aggravating circumstances. On the other hand, the most recently issued final orders of deportation and cases with the most investigative leads will be given higher priorities. ICE agents are encouraged to expeditiously act on current, time-sensitive leads to increase the chances of apprehension.

Although these tiers and levels provide some basic guidance to the agency, the Assistant Secretary emphasizes that they should not be applied “so rigidly as to undermine sound judgment when exceptions are warranted by circumstance.” This remark suggests that the field officers may and can use their discretion in individual cases.

ICE officers will also receive Constitution Law training every six months which will focus on the special issues and considerations involved when ICE officers are making arrests at personal residences. It should be noted that, during an enforcement operation, if other deportable aliens who are not targets of the operation are encountered by ICE officers, they will also be placed in removal proceedings.

Most of the deportable aliens will be detained if they are apprehended. Congress passed laws to make it mandatory to detain individuals with final orders of removal. However, those who are physically or mentally ill, disabled, elderly, pregnant, nursing, or the sole caretaker(s) of children or the infants are not subject to detention unless there exists other aggravating circumstances.

Although the number of apprehensions and removal will be tallied and recorded, the Assistant Secretary has emphasized that quotas will not be imposed on the field officers so as to increase the apprehension and removal of non-criminal aliens. Criminal aliens here refer to individuals who actually committed a crime or crimes but not those who became fugitives by virtue of their immigration status.