A client came to our office to assist him and his husband after being told by multiple lawyers that there was nothing that could be done for his case. After a review of the file and conducting a review through the Freedom of Information Act (FOIA), we learned that the client (from Honduras) had a final order of deportation in absentia from Harlingen, Texas dating back to the mid-2000s. The client was in a same-sex marriage and feared return to his native Honduras.
If an inadmissible alien is caught at the border trying to enter the U.S., they are usually issued a Notice to Appear (Form I-862) and told to return for a hearing in the future. If they fail to appear, they are often deported in absentia – meaning they are deported in their absence (without them being there).
There are several methods to reopening an in absentia order, including upon the filing of a motion to reopen if the respondent did not receive proper notice of the hearing. INA §240(b)(5)(C)(ii); INA §242B(c)(3)(B) (pre-IIRAIRA); 8 CFR §1003.23(b)(4)(ii), (iii)(A)(2); see Matter of Haim, 19 I&N Dec. 641, 642 (BIA 1988).
A Motion to Reopen may also be filed if the alien failed to appear for “exceptional circumstances.” Immigration courts use a “totality of the circumstances” test to assess whether an alien’s reason for not attending the hearing is an “exceptional circumstance”. Matter of W-F-, 21 I&N Dec. 503, 509 (BIA 1996) citing H.R. Conf. Rep. No. 955, 101st Cong., 2d Sess. 132 (1990); Matter of Grijalva, 21 I&N Dec. 472, 474 (BIA 1996).
A Motion to Reopen may also be filed due to changed circumstances in the alien’s case. According to section 240(c)(7)(C)(ii), a Motion to Reopen to apply for asylum or withholding of removal based on changed country conditions arising in the country of nationality, if the evidence to be offered is material and was not available and could not have been discovered or presented at the previous is not subject to the usual time and numerical limitations. Matter of J-G-, 26 I&N Dec. 161 (BIA 2013)
Finally, a Motion to Reopen can be filed at any time upon the agreement of the U.S. Department of Homeland Security. 8 C.F.R. Sec. 1003.23(b)(iv).
Examining the FOIA and researching the particulars of each case is essential to finding a way forward. In this case, Mr. Miller carefully reviewed the FOIA and learned that there was a possibility that original service of the Form I-862 was defective. In addition, Mr. Miller researched the client’s claim for asylum from Honduras based on changed circumstances (LGBT asylum status), and gathered evidence regarding the client’s current marriage to a U.S. Citizen.
Based on this groundwork and preparation, Mr. Miller was able to reach out to the Office of Chief Counsel in Harlingen, Texas and obtain their consent to join in a motion to reopen this deportation case. Upon filing of a Joint Motion to Reopen, the U.S. Immigration Court agreed to Rescind and Reopen the case to allow the client to seek consular processing and asylum.
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