We often see the same scene played out with different characters. A person walks into our office and says they have not heard from the Immigration Service in a long while. They’ve called their 800 number, they have visited the field office, they have checked on-line. Their case seems to be in “legal limbo”.
Imagine their surprise when we call the Automated Query System of the Immigration Court and learn that, according to their computers, the person was deported months, or perhaps years ago. He or she never received a letter, a phone call, not even a warning on their visits to the USCIS field office. Their whole case has been summarized by a one-sentence automated blurb that dispassionately drawls, “The Immigration Judge order you removed on [date]”.
For most people, this is a very hard thing to hear, particularly those who have diligently asked after their case through one of the many channels the government puts at immigrants’ disposal. The truth, however, is that these “channels of communication” are more like optimistic generalizations that cannot be relied upon to ascertain the actual status of a case. When the harsh reality comes crashing down, one might think that the battle is over before it was actually begun. Once ordered deported, there seems to be little chance of obtaining any immigration relief.
So, what to do if you suddenly find out you were deported? The solution is to retrace the steps of the deportation or removal order. This means going through every bureaucratic step in reverse, fixing and correcting the government mistakes that led to Immigration Court. This is where an attorney can come in handy.
An immigrant may authorize an attorney to represent her or
him before the Immigration Court. This
is done using a form called EOIR-28. In
this form, the attorney informs the court that he or she has been retained to provide
legal services on an immigrant’s behalf.
The attorney has several options.
The record of the court file may be inspected, or, if, enough details
are known, file to have the order of removal rescinded (taken back) and an immediate stay of
the deportation order put into place. Of
course, this is not merely a matter of asking the court to reopen a case “just
because”. The alien must provide a convincing
argument and, if available, proof, that they have never received notice of the
removal or deportation proceedings.
Lack of notice is one of the grounds for reopening a case at any time, and it is crucial to bolster the request with evidence that the alien has dutifully informed all changes of address, and that copies or records of status inquiries be submitted. In many cases, a sworn affidavit may have to be provided as the alien must state, under penalty of perjury, that notice was never received. The government is then given an opportunity to respond to your request (or “motion”) to reopen. They may agree and state that they do not oppose a reopening or they may challenge your allegations by providing what they believe is proof that they did indeed give proper notice. These are definitely deep waters that an immigrant should preferably tread with the aid of a competent attorney.
The proceedings at the Immigration Court will strip the order of removal from your case file, but that does not mean your case is finished. Remember how the case arrived at the Immigration Court? That’s right. You still need to have the USCIS look into the denial of your case so that the reasons for the denial are corrected and overcome. Sometimes it is simply a matter of correcting a typographical error and sometimes it is a matter of evidence requested that was never received.
Regardless of the reasons, the USCIS cannot give you an immigration benefit unless you prove that you are eligible. So, if you did not receive that request for evidence asking for a clearer copy of your birth certificate or a criminal record, you are still ultimately required to provide these documents. You do not receive a free pass because of all the hoops you have had to jump through.
In conclusion, a recently discovered order of removal or deportation is a very serious matter: it can interfere with employment, travel, and general livelihood of an immigrant. It is not, however, the end of the road. There are ways to “remove” orders of removal, particularly in cases where no notice was ever received. With patience, diligent record-keeping, and tenacity, you can reconstruct your case and avoid being permanently removed from the United States.
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