What happens if I don’t show up to immigration court?
A person who fails to appear at his removal hearing after proper notice shall be ordered removed if the Service can establish that the written notice of the hearing was provided and that the alien is removable.
“Proper notice” is when written notice is given in person or mailed to the alien at his last known address or his attorney’s address. The use of certified return receipt mail is no longer required. A person who, without reasonable cause, fails or refuses to attend a removal proceeding cannot “re-enter” the U.S. within 5 years of his departure or removal.
The bar is longer if the person has oral notice of the pending hearing. A person who has a final order against him, in absentia, after receiving oral notice is barred from most forms of relief for 10 years including cancellation of removal, voluntary departure, an adjustment of status, and registry. The bar was formerly 5 years. The bar only applied where the failure to appear was not due to exceptional circumstances and where the person was provided oral notice in his own language or a language he understands regarding the time and place of the hearing and the consequences for the failure to appear.
If a person is in this situation, the only way that the in absentia order may be rescinded is if (1) a motion to reopen is filed within 180 days of the order and the person demonstrates there were exceptional circumstances; or (2) a motion to reopen is filed at any time and the person can show that the failure to appear was due to a lack of proper notice or that he was in state or federal custody and the failure was through no fault of his own.
The 180 day period is can be extended IF there was “ineffective assistance of counsel” where the person failed to appear at his hearing because of bad advice of his attorney. Equitable tolling is also appropriate where the fraudulent actions are by persons who are immigration consultants and not attorneys.
The filing of a motion to reopen for deportation cases is not subject to the one motion rule in these cases that is imposed in other cases. Therefore, one can make as may motions to reopen as he wishes to challenge the order in deportation and exclusion proceedings. This does not apply for removal proceedings.
There is no direct appeal to the BIA from an order of deportation entered in absentia. The party can only file a motion to reopen before the Immigration Judge. The Immigration Judge makes the decision on whether to reopen the case. If the Immigration Judge does not wish to reopen such case, the party can appeal that decision to the BIA.
If you have been ordered deported in absentia, I suggest that you contact an immigration attorney as soon as possible.