Before any immigration removal hearings can begin, the alien being summoned has the “right to notice”. This means that they have the right to be informed that they are requested to appear in a removal hearing. At the hearing, an immigration judge will conclude whether or not they will be removed from the U.S.
The right to notice is fulfilled when the government sends the alien a “Notice to Appear” (NTA). The Notice to Appear is a written document that can either be served to recipient in person, or sent through mail if personal service is not practical.
How Are Removal Hearings Begun?
The removal hearings begin when the Department of Homeland Security begins the removal proceedings, often through it’s Immigration and Customs Enforcement Division, known as ICE. There are a number of ways that a non-citizen can be aware that the proceedings have begun. The DHS must also serve the alien with a Notice to Appear before the proceedings have begun and must inform the alien of the following within the NTA:
- The name of the person requested to appear
- The nature of the hearing
- The alleged grounds for removal (such as illegal entry, commission of a crime, etc.)
- The date, time, and place of the hearing
- Consequences of non-appearance at the hearing
- Person’s right to an attorney
Immigration laws do not require the notice to be translated in another language or sent through certified mail.
How Do Immigration Authorities Know If a NTA was Received or Not?
There must be proof of attempted delivery, either by mail or in person, to the last address that the alien provided to immigration agencies. Alternatively, the NTA can also be addressed to the alien’s attorney, if applicable. The Notice to Appear is presumed to be received if it was properly addressed, and mailed according to standard post office procedure.
What If the Notice to Appear is Ignored or Disregarded?
There could be serious consequences if the NTA was properly delivered, but rejected, ignored, or disregarded by the alien. If the alien fails to appear at the hearing after the NTA is delivered, then the government can begin what is called an “in absentia order of removal”.
An in absentia order of removal allows the government to begin and conclude the removal proceedings without the alien actually being present at the hearings (“in absentia” means “in absence”). In order for the in absentia order of removal to be officially executed, the government must prove through clear and unambiguous evidence that:
- Written notice was definitely provided, and
- The alien is in fact removable
Note that the alien does not actually have to receive the notice in order for an in absentia order to be triggered. It is simply enough if the NTA was delivered according to the standards listed above.
What Are the Consequences of an In Absentia Order of Removal?
An in absentia order of removal is somewhat more severe than a regular order of removal.
For instance, an in absentia order of removal cannot be appealed by the alien. Also, the alien will be disqualified from receiving any type of discretionary relief (such as adjustment of status) for the next 10 years.
While in absentia orders may not be appealed, they can be rescinded (cancelled) under very specific circumstances. One of these is if the alien can prove that they did not receive notice under the requirements of immigration laws. Thus, it is very important for a person to understand their right to notice if they are involved in removal proceedings.
Should I Hire a Lawyer for Issues With the Right to Notice?
If you have any questions or concerns regarding an immigration hearing, you may wish to contact an immigration lawyer immediately. This is especially true if you will be facing a removal situation and have questions regarding a notice to appear in immigration court. An experienced immigration attorney can assist you through the process to protect your rights.