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Immigration Issues/How to challenge in absentia removal order

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Question
I was arrested for simple DWI and then served 8 months of a 1 year sentence.

At the end of my sentence I was turned over to ICE.  My friend posted the bond and I was released. My friend's bond paperwork indicates where I was going to be staying. At the time of release I was given a NTA which indicated no specific date to return.

Several months later a Master Hearing was scheduled but the Notice of Hearing did not reach me in time to attend. It was received literally the night before the hearing and I did not get it until the next morning - after the 9:00 am hearing.

There are two reasons why the hearing notice may not have arrived properly. The first is that I have a documented ongoing problem with the post office whereby my mail has constantly been getting delivered to the wrong address, or sometimes just left sitting in the common mailbox for several days/weeks until the regular mail carrier returns from vacation and finds my mail and delivers it properly. The post office is aware of my numerous complaints and they have been taking steps to correct this problem.

Much more importantly, though, is that the notice was not addressed properly. It has the wrong zip code and may more correctly explain the delay in receipt. The zip code was different/wrong from the one provided when my friend bonded me out. On the bond papers it is correctly indicated where I will be staying - with the correct zip code. The last two numbers were switched on the notice that was sent

A week or so after the missed master hearing, I received in the mail a decision regarding the missed removal hearing - again with the incorrect zip code. The decision said that I was ordered to be removed in absentia.

Questions:

1) Several people here have been very helpful with the matter but I need to be clear on the time limits on challenging the removal order.  I have been told that there is NO LIMIT if the challenge (motion to reopen to rescind) is based on a claim of improper notice and 180 days if the claim is based on exceptional circumstances. As suggested here, I contacted an attorney who told me I only have 30 days to challenge the judge's decision. WHAT IS THE CORRECT TIME LIMIT? ****It is now 25 days post-decision.

2) If I am still able to challenge the decision based on the issue of improper notice, will it simply be that pointing out the improper zip code gets it reopened or will I then also have to prove the delay in receipt, or when I actually received it? I did see the Busquets-Ivars v. Ashcroft case which seems to say that actual receipt is irrelevant, if the zip code is wrong the case gets reopened.

3) If the zip code issue is not sufficient on its face to get it reopened, will I have to make an issue of the verifiable delivery problems with the post office, and if so, how?

4) Will the govt argue that , yeah the zip was wrong but I still got the notice in time to rush down to court even though I did not have enough time to notify an attorney to be with me?

Answer
My responses are below:

Questions:

1) Several people here have been very helpful with the matter but I need to be clear on the time limits on challenging the removal order.  I have been told that there is NO LIMIT if the challenge (motion to reopen to rescind) is based on a claim of improper notice and 180 days if the claim is based on exceptional circumstances. As suggested here, I contacted an attorney who told me I only have 30 days to challenge the judge's decision. WHAT IS THE CORRECT TIME LIMIT? ****It is now 25 days post-decision.

I would say that there is a 30 day to challenge the decision given that you have proper notice now.  You have received the NTA and you have received the judge's order.  File a motion to reopen as soon as possible

2) If I am still able to challenge the decision based on the issue of improper notice, will it simply be that pointing out the improper zip code gets it reopened or will I then also have to prove the delay in receipt, or when I actually received it? I did see the Busquets-Ivars v. Ashcroft case which seems to say that actual receipt is irrelevant, if the zip code is wrong the case gets reopened.

I agree.  However, I would pile up the evidence to show that there were problems with the post office in addition to the wrong zip code but the wrong zip code is very strong evidence that there was improper service  

3) If the zip code issue is not sufficient on its face to get it reopened, will I have to make an issue of the verifiable delivery problems with the post office, and if so, how?

I would dig out any evidence showing problems with the post office  

4) Will the govt argue that , yeah the zip was wrong but I still got the notice in time to rush down to court even though I did not have enough time to notify an attorney to be with me?

No. the government does not have much room for argument here.

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Jack Sung

Expertise

Can answer: Immigration and visa issues Can't answer: Everything else

Experience

Been a practicing immigration attorney for 4 years.

Organizations
Taiwanese American Lawyers Association. American Immigration Lawyers Association. Los Angeles County Bar Association

Publications
Southwestern International Law Journal

Education/Credentials
J.D. from Southwestern Univ. School of Law in 2007. Licensed attorney in California

Awards and Honors
LACBA 2011 Outstanding Public Service Award

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